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PhotDgrapbJc 

Sciences 

Corporation 


23  WEST  MAIN  STRUT 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


CIHM/ICMH 
Microfiche 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


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The 

to  tl 


The 
pes: 
of  tl 
film 


Oris 

beg 

the 

sior 

othc 

first 

sion 

or  if 


The 
shal 
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whii 

Mbf 
diffc 
entii 
begi 
righ 
reqij 
met 


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1 


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20X 


24X 


28X 


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du 

adifier 
une 
nage 


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empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
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symbole  V  signifie  "FIN". 


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et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n6cessaire.  Les  diagrammes  suivants 
illustrent  la  mSthode. 


rrata 
o 


lelure, 
1  A 


H 


32X 


1  2  3 


1 

2 

3 

4 

5 

6 

Cons 


OBSEI 

ST. 


R 
^ 


COMMENTARIES 


ON   THE 


Constitution  of  the  United  States 


HISTORICAL  AXD  JURIDICAL 


OBSERVATIONS    UPON    TIIK    ORDIXARY    PROVISIONS    OF 

STATi:  ( ONSTITITIONS  AND   A  COMPARISON  WITH 

TIIK  CONSTITUTIONS  OF  OTIIKR   COUNTRIES. 


ROGER   FOSTER, 

OK  THK   NF.W    Y*)HK   llAK, 

AuTHoK  OF  A  Thkatisk  iiv  FmiKitM.  I'liAcTiri:,  Ti:iai,  iiy  N'KWsrArBH,  &c. 

AM>  liKCTiitKii  ON   I'"i;iii:kat.  .liuisri{ri>i:N<  k  at  thk 

I-,A\v  SiHooL  oi'  Vale  I'nivkhsitv. 


Volume  I. 


R  O  S  T  O  N  : 
THE   BOSTON    iU)()K    COMPANY. 


Tor  ON TO: 

THE  CAKSWELL  C.  Ltd. 
im>. 


3  4^-75 


CdI'YIUIIHT,    1W)u, 
IIV    llMill-.U   FoSIKH. 

The  right  of  IranMalwn  mid  nil  otiwr  rights  rewned. 


i:iiter«l  aceoidlDK  to  Act  of  tbe  rarliameut  of  Canada,  ia  Ibo  your  or.o 
thousand  eight  humlred  and  ninoty-six  by  ItooRn  Fokti  ii,  in 
th3  Offljeof  tlij  AliniRttr  cf  Acriculturo 

Prt-Hnwork  «'iinu<llitn  Edlllun)  by  The  C'nnwcll  Co.  Lid.,  SO  Adelultif,  HI.  i:. 


TO 
lilH   HONORABLE   MKLVILLE   W.   FUT.I/KR 

Chief-Justice  of  the  United  Statfjj 

AS  A  SLIGHT  TRIBUTE 

TO   HIS   LEAKNINU,   PATIENCK   AM)   COUR'l'ESY 

THIS  BOOK  IS  UV  HIS  I'EUMISSION 

BESl'ECTFULLr    DKDiCATED 


CONTENTS. 


ClIArTEB  I. 


INTBODUCTION. 


§  !• 

§  2. 

§  3. 

§  *■ 

§  5. 

§  6. 

§  7. 

§  8. 

§  !). 

§  10. 


Pnppr  Constitutions 

Uoslility  to  tlic  Fod(5rnl  Constitution    . 
Anarchy  prccodint;  th(!  Foilcriil  Convention  . 
Previous  Attempts  at  Union   .... 
PrelinilniirioK  to  llie  Federal  Convention 
OrlHlniiilty  of  the  Work  of  tlio  FiHleral  Conventioi 
Prototypes  of  the  Fedoriil  Constitution 
Models  of  tho  Federal  Constitution 
OiTiiproniises  of  the  Constltuticin  .        ,        , 
Kesult  of  tho  Federal  Convention  . 


§11. 
§12. 
§13. 
§14. 
§15. 
§1C. 
§17. 

§  is. 
§  19. 

§20. 
§21. 
§22. 
§23. 
§21. 
§25. 
§2G. 
§27. 
§28. 


1 

.3 
6 
13 
19 
22 
27 
38 
41 
45 


Appendix  to  Chapter  I. 
John  Lllburno  and  the  Agreement  of  the  People 

CHAPTER   11. 

NATURE  OF  THE  CONSTITUTION  AND  THE  PREAMBLE. 

Nature  of  the  Constitution  of  the  United  States 

Sovereignty  of  the  StiUi-s  Ijofore  the  B'ederal  Constitution  .        , 
The  Constitution  was  formed  liy  Uie  Tldrteen  SUitos  .... 

Form  of  llatilleations  of  tho  Constitution 

Legality  of  an  ludl.ssolulile  Union  between  Sovereign  Slates 

Tlie  Constitution  is  not  a  Legal  Compact 

Proieedlngs  in  Federal  Convention  as  to  tho  Determination  of  the 

Form  of  the  New  Govornment 

History  of  tho  Preamble 

Signidcaneo  of  the  Phrase  "We  the  people  of  tho  United  States  " 
Siginllciineoof  the  Phrase  "to  form  a  more  perfect  Union" 
SlgMJIlcance  of  the  Phrase  "to  Establish  Justice"        .        .         ,         . 
Siguilieanee  of  tho  Phrase  "  to  Insure  domestic  Tranquillity  "    . 
"to  provide  for  the  Common  Defense" 
"to  promote  the  general  welfare" 
"to  secure  the  Blessings  of  Liberty" 
"Ordain  and  Establish"      .         .        .        . 
Constitution" 


Signllicnnee  of  the  Phrase 
Signlflcanee  of  tho  Phrase 
Signincnnec  of  tho  Phrase 
Signlllirance  of  tho  Phrase 
Signlllcance  of  the  Word  ' 


4<l 


61 
63 
70 

70 
73 
75 

80 

!)2 

91 

96 

97 

98 

99 

99 

100 

lOO 

103 


Testimony  of  Contemporary  Statesmen  on  tho  Nature  of  the  Consti- 
tution     104 

V 


VI 


CONTKNTS. 


§  '2'.i.  .Iiidli'lnl  Pcclsloiis  lis  1(1  till'  Nil!  HIP  nf  I  ho  Constitution 

§  :iO.  JuHlillriilidii  for  Iti'lic'f  ill  1,1'Kiilily  of  ScMi'HHioii    . 

§111.   Kaily  Awscilioiis  of  the  liinlil  of  Simm'shIoii    . 

<i  :)'2.  Vli'fdnlu  mill  Ki'iiliK'k.v 'tcsolutioiis 

§:i:i.  Till)  Docii'iiicor  Niiiiiiii'iuioii 

§  :U.  History  of  Kiillinralloii 

§  :t5.  f'Diistiliilloiial  AHpiMts  of  Sliivi'iy  .... 

jj  ;U!.  History  of  Sc(('>^sloii 

§  ;17.  ('ipiisliliilioiial  History  of  tin'  Hoiitlicni  Coiifoilcracy 

§  ;1H.  ili'i'OMstrilrlioli 

§  ;i!).  Soat  of  SovniMKiitv  in  till' I'liili'il  Stall's 

«!  10.  Sovi'iriiiii  rowers  of  tin'  I'liiti''!  Stall's  In  (ii'iii'ral 

J  41.  State  Sovorolguty  anil  Slate  Itlnlits 


.  KIM 

.  lll> 

.  lit; 

.  lilt 

.  Vi-y 

.  146 

.  1.18 

.  1C3 

.  IHO 

.  20.'; 

.  aci!) 

.  270 

.  273 


Al'I'ENUIX   TO   C'HAl'Tlill   II. 

An  Aet  ConciTiiiiiK  Aliens 279 

TheSeilitioii  Law 2«1 

Virginia  Ui'soliil ions  of  17'.m 2H2 

KentiieUy  llesoiutioMsof  17im 2H5 

Kentucky  Ui'Milut ions  of  171111 21)1 

First  Onlinaiiee  of  Niillillnition 21)3 

Suroad  Urdiuunc'u  of  Nullllkatiou 296 

CHAITKH   III. 

THE  TIIIlKi;   llEl'AltTMENTS. 

§  42.  Tlio  tlireo  Depart nients  of  the  (toveriinient  of  the  Unltod  States 

j)  4!!.  History  of  the  (UassHieation  of  ('loM'rnmental  Powers 

§44.  Ileasons  for  thu  Separation  of  the 'I'liiee  Powers  . 

§  45.  Eiiuilibrium  of  tlio  Throu  Departments  in  the  United  States 

CIIAPTKU  IV. 

<'ON(inKS.S   IN   OKNEHAL. 

§40.  LI niitoil  Powers  of  CocRiess 306 

§47.  Origin  of  ('on;,'ress 307 

§  48.  Proeeeilinns  in  Convention  as  to  the  C^imposition  of  Congress    ,        .  312 


103. 


§04. 


.f«        §  •'••'5 

~9      §  00 

.  297 

M     <)  '•< 

.  299 

'1     §  '''** 

.  302 

1      §  (i''' 

.  303 

-J 

§49. 


S50. 
§  51. 

§r.2, 

§63. 


CHAPTEll  V. 

TEHM   OF   MKMnr.RS  op  Tllf.  IIOISE  OF  nEPIiF.SENTATmS. 

Term  of  Mi'mhers  of  the  House  of  Itepresentativos 


.  316 


CHAPTER  VI. 

THE   UKIHT  OF  SFFFRAOE. 

Provisions   In   the   Feilenil   Conslitiition    eonccrning   the  Right  of 

Suffrage 319 

History  of  ronslitutional  ProvlHlous  as  to  the  Right  of  Suffrage  .  319 

The  Fifteenth  .\menilnienL 326 

Tho  Power  of  Congress  over  tlio  Right  of  Suffrage        .        .        .        .330 


CONTKNT8. 


Yii 


Pni.'e 
.  lOH 
.   Ill) 

.  mi 

.  U'.t 

.  va 

.  145 

.  l.W 

.  103 

.  IHti 

.  '205 

.  'iCi',) 

.  270 

.  273 


.  279 

.  2H1 

.  2H2 

.  2H5 

.  21)1 

.  21)3 

.  2U6 


297 
21)1) 
302 
303 


306 
307 
312 


316 


Right  of 


.  319 
.  319 
.  325 
.  330 


i^  54.  Lliiillntlons  of  the  Fwleral  ConBtltutloii  on  tho  Powor  of  tlio  Htates 

ovrr  llio  lllKlit  of  HuffrnRO 332 

^  nr,.  r«iml  Vrovislons  of  Slato  CoiiHtltutloiis  as  ti>  llio  ItlKht  of  SuffriiKi)    .  330 

jj  5(1.  ('oiiHlilulloimllly  of  UonlBlriitloii  LiiwH 340 

§57.  Minoiil.v  Kfprotionliitlou 3i'i 

I  5M.  Tlif  Iliillot !'•*■* 

§  5S).  Ck-norul  Obsenatlons  upon  the  KIkIiI  of  Suffrugo         ....  347 

rHArxEii  VII. 

NE(.'EHHARY  QUALIFICATIONH   I'OU  KKNATOIW  AND   HETOEHESTATIVKS. 

§  CO.  CoiistiUitlomil  rrovlHioiis  ('(incoiiiinn  Qiialllli'alioiis  of   McnilxTH  of 

CoiiHri's:* •'•''• 

§01.   Ilisloi-vof  rrovlHloiiH  fOiiecrnlnK  Quallllcatlons  of  MoinberH  of  Cou- 

^r,-,.SH 356 

§  02.  CoiiK'n-Hsional  Di'flslons  on  Quullllfations  of  Hcnutors  and  Bopri'siMi- 

tatlvoa .  30a 

CHAl'TER  VIII. 

Ari'OIll  lONMKNT   OF    HEPllESKNTATIVKS   AMI   DIItECT   TAXES. 

§03.  t'onsUtulional  ProvisiouK  conoernlnn  ApportioniiitMit  of  Represonta- 

tivi's  and  Diri'ct  Taxf'S 369 

§  C4.  Hinloiy  of  tlu'  ("laiiso  concpniinK  llic  AppoiUoninont  of  Representa- 
tives niul  Diieet  Ta.xes 370 

§05.  Manner  of  Apportioiinient 393 

§00.  Revisicm  of  Apportioiinienls  liy  llio  Courts     ......  398 

§  07.  The  CiMsus 410 

§  OH.  History  of  tli((  Apportionment  of  Direct  Ta.M's  under  the  Constitution  413 
§  09.  Direet  Taxes ■ll'"> 

Al'l'ENDIX   TO  C'H.\PTi:lt    VIII. 
Jefferson's  Opinion  on  tlio  Appoilioniiieiit  of  1792       .         .         .         .424 
Wclister's  Report  to  tlio  Senate  on  t  lie  Aii|K)rlionnu>nt  of  1832    .        .  430 

CHAl'TER  IX. 

VAOAXriEM   IN  THE  nOfSE  OF  IlEI'llRSENTATIVIM  AND  KESKl.NATIONS  FKOlf 

(■ON(iIii;s.S. 

§  70.   Vaeaiicies  in  tho  Houso  of  Representatives 417 

§  71.  Re.si(;nation8  from  Congress 448 

CHAl'TER  X. 

Rl'EAKEU   AND  OTHEU   OPFI('EIt.S  OF   'niE  HOl'SE  OP   REPRESENTATIVES. 

§72.  The  Speaker  of  the  House 451 

§  73.  Other  Ofllcers  of  tho  Houso -ISa 

CHAPTER  XI. 

THE  HENATE. 

§  74.  Constitutional  Provisions  concerning  tho  Senate 457 

§  75.  Origin  of  tho  Senate •        •        •         •  -t"'-* 


COKTKNT8. 


Purb 
i!  "<>.  I'l,  .^ppilliinH  in  till'  Focloriil  Cunvontlon  conoernlnK  tlio  CoinpoBltioii 

or  tlii-Si'Mittn 4011 

S  77.  KiMia'diial  Kl.'ctloiiH 172 

i(  7H.  Cla.sHillcalloij  of  till' Si'iiiit IHII 

§  7!).  FllliiiK  Vai'aiK'loH  In  tlinSi'imti- 184 

§  HO.  (k'urral  OliHorvntloiiH  on  till- Hcnnio 491 

CHAITKU    XII. 

THE   PiaS<mKNIV    AM)   Ill-KICKIIS  OP  TIIR  SKVATK. 

^H\.  C'o'iHtitntlonal  I'lovlMJons  ('onci>i'nin«  tin)  rri'wldcMirv  ainl  OfllciTH  of 

.luiSiMuilK 49!) 

j  S'2.   Mlwloiy  of  tlio  rrovlsions  as  to  llii"  I'ri'slilfMic.v  and  OHIcith  of  the 

Ki'iiato 490 

§  m:1.  rowi-iH  of  till- Vlci'-i'ipsidcnl  oviT  till' Senate fiO() 

i!  H4.  The  President  pro  ternjiore  of  the  Senate fiOa 

§  S5.  Other  Omcer.H  of  the  Senate 504 

CIlAriKU   XIII. 


ISIfEACItMKNT. 

jS  80.  rrovisioiiH  of  the  Const Itiil ion  roneerninu  IiMpeachmont 

§  K7.  (<rit;iii 'if  Iiupeaehnients 

§  HM.  I'roeeedln}.'--  in  tlin  Convention  as  to  Inipi'aelinicnt     . 

ji  H9.  KeiiMons  for  the-  Trial  of  IiiipeacOinieuts  \i\-  I  ho  Senato 

§  90.  History  of  lMipea<'lunenlH  liefon^  tho  Senate  of  the  I'nited 

§  91.  IVrsoMs  Siiliject  to  Iiiipeaehineiit 

§92.  Impeachment  after  Expiration  of  (Irtieial  Term   . 

§  9:t.  Impeaehalilo  Offences 

ii  94.  Convictions  upon  IiiipoachnicMl  'ii  llie  Tnited  States  . 

§  9.").  Causes  fo'-  wliicli  Piil)lle  Ofllcflrs  inaj  lie  liemoved 

S  90.  Removal  of  i1nil^,'cs 

§  97.  I'reliiMinary  Proceedings  on  Iinpi'achnicnts 

J!  98.  Arti<lcs  of  Impeachment 

J  99.  Service  of  Process  on  Impeachment       .... 

()  100.  Jlaniiners  of  Iiiipeactimeut  and  Counsel  fiir  Pr<iseciiUon 

i)  101.  S\voariii}{  of  tlie  Sen.ile 

§  lO'i.  Appearance  of  the  Ai-ciised 

ji  lo;).  Pleadings  of  the  Respondent 

§  104.  IleplicalioM 

ji  lO.'i.  Proccedhiijs  on  the  Trial  of  an  Impoaelimeiit 

S  100.  Evid(!nce  upon  Impeachment  Trials      .... 

!)  107.  Argnments  of  ConiiBi'l 

§  108.  Doeision  upon  Impeiichmeiit 

ij  109.  Imposition  of  Penalty  upon  Conviction 

ii  110.  Pardons  to  Impr-nclimenls 

*i  lU.  (X)neludiug  Oliservalions  on  ImpoacliMienlH 

APPENDIX   TO   VOL.  I. 
State  Impeaehmeiil  Trials 


States 


505 
.500 
508 
512 
.">29 

noo 

574 
581 
000 
002 

con 

000 
007 
010 
012 
012 

oi;t 

014 
010 
Olfi 
019 
021 
022 
020 

t;28 

63U 


o;i;j 


,/5«.i^7 


COMMENTARIES 


UN  THI 


CONSTITUTION  OF  THE  UNITED  STATES, 

HISTORICAL   AND  JURIDICiL. 


CHAPTER  I. 


IXTRODUCTIOX. 


§  1.  Paper  CoiiHtitiitiotiN. 

Paper  constitutions  liave  l)een  the  target  for  the  ridicule 
of  most  writoin  duriuf^  the  i)resent  century  who  have  thought 
themni'Ives  political  philosophere.  Unstable  as  water,  they  can- 
not excel,  has  been  the  judgment  upon  tlier.  by  historians.' 
"  Have  you  a  copy  of  the  French  Constitution?"  was  asked  of  a 
booksillcr  (hiring  the  se(M)nd  French  Republic.  "  Wo  do  not  deal 
in  periodical  literature,"  was  the  rei)ly.*  In  the  United  States, 
and  only  in  the  U'nited  States,  has  a  written  constitution  survived 
a  hundred  yeare,  while  during  the  same  time  the  forms  of  the  gov- 
ernments of  all  other  nations  have  changed  more  often  and  more 
radically  than  have  their  respective  boundaries.     What  are  the 


§  1.  1  As  lato  as  1814,  ovon  Oouvor- 
neur  Morris  was  sceptical.  He  wrote, 
In  a  letter  to  Timothy  Pickering,  Dec. 
22, 1K14:  — 

"  But,  after  nil,  what  does  It  sig- 
nify that  men  should  have  a  written 
consUtution,  contaiDlng  unequivocal 
provisions  and  limitations  ?  The  leg- 
islative lion  will  not  be  entangled  In 
the  mealies  of  a  logical  net  The  leg- 
islatiiro  win  always  maico  the  power 
which  it  wishes  to  exercise,  unless  It 
bo  so  organized  as  to  contain  within 
Itself  the  sufficient  checli.  Attempts 
to  restrain  it  from  outrage,  by  other 


means,  will  only  render  It  more  out- 
rageous. Tiio  Idea  of  binding  Ifgia- 
lators  by  oaths  Is  puerile.  Having 
sworn  to  exercise  tlia  powers  granted, 
according  to  their  true  intent  and 
meaning,  they  will,  when  they  feel  a 
desire  to  go  farther,  ovoid  the  sliamn, 
if  not  the  guilt,  of  perjury,  by  swear- 
ing the  true  intent  and  meaning  to 
be,  according  to  their  comprehension, 
thot  which  suits  their  purpose." 

2  In  the  preceding  century  a  similar 
question  was  answered  by  the  offer  of 
the  Almanach  Royal. 


INTUODUCTIOX. 


[chap.  I. 


I'oasons  for  this  phenomenon  ?  How  many  of  them  are  to  be  found 
ill  jji-ucediuf^  history?  How  many  in  geographical  ijosition?  How 
lias  the  Constitution  been  affected  by  the  origin  of  the  colonists? 
How  much  by  the  subsequent  immigration  from  all  parts  of  tiie  Old 
World  ?  To  what  extent  has  the  Constitution  been  altered,  besides 
the  acknowledged  changes  contained  in  the  fifteen  amendments  ? 
What  are  the  advantages  of  this  form  of  government?  What 
beneiits  has  it  secured?  What  abuses  has  it  perpetuated? 
Wliat  evils  has  it  prevented?  How  far  is  it  suitable  to  other 
countries?  Why  have  its  imitations  failed  in  South  and  Central 
America?  The  answera  to  these  questions  should  be  of  use  to  our 
own  countrymen  in  order  to  show  them  what  rules  must  be  observed 
to  preserve  the  stability  of  our  institutions.  In  the  constant  re- 
making of  the  constitutions  of  Europe,  South  America,  and  even 
Asia,  Africa,  and  the  Pacific  islands,  they  should  teach  statesmen 
the  2)itfalls  to  avoid  and  the  paths  to  seek  for  the  permanent  security 
of  botii  liberty  and  property.  These  can  be  found  oidy  by  an 
exhaustive  study  of  the  precedents  which  are  landmarks  of  the 
progress  in  the  development  of  the  Constitution  of  the  Ignited 
St;ites  before  as  well  as  since  its  adoption.  They  lead  from  the 
forests  of  Germany  in  the  time  of  Tacitus,  over  the  island  of 
Runnymede  and  the  rock  at  Plymoulh,  beyond  the  ajjple-tree  at 
Appomatox  into  tiie  old  Senate  Chamber  at  Wasiiington,  where 
Cliief  Justice  Fuller  sits  with  his  associates.  They  were  the 
result  of  conlliets  with  tiie  sword,  the  pen,  and  the  tongue,  in  the 
field,  the  jiress,  the  senate,  and  the  court.  Amongst  their  buildera 
are  enrolled  tiie  names  of  Simon  de  Montfort,  Cok(!,  Eliot,  Hamp- 
den, Lilburne,  j\Iilt(m,  Siiaftesbury,  Locke,  Wilkes,  Jeffei-son, 
Hamilton,  Marshall,  Webster,  and  Lincoln.  They  ju'cscnt  the 
spectacle  of  tiie  struggles  of  a  people  to  obtain  civil  and  religious 
liberty  for  themselves,  to  extend  them  to  those  of  another  and 
despised  race,  and  now  to  combine  them  with  the  rights  to  un- 
goveined  labor  and  complete  security  for  private  property.  I)r}- 
as  the  account  nuist  be  in  a  summary  which  omits  a  description 
of  the  battles,  and  does  not  contain  the  jierioils  of  eloquence  and 
I):ission  used  by  the  combatants  on  either  side  of  the  di.«putes  thus 
decided,  the  facts  cannot  fail  to  be  of  interest  to  all  wlio  take 
the  pleasure  of   the  antiquary  in  tracing  the  origin  of   presiiut 


[chap.  1. 

be  found 
11  ?  How 
iolonists? 
)f  the  Old 
d,  besides 
iitbnents  ? 
,?  What 
petuated  ? 

to  other 
d  Central 
use  to  our 
i observed 
nstaiit  re- 

and  even 
statesmen 
lit  security 
lily  by  an 
.rks  of  the 
;he  United 

from  the 
;  island  of 
)ple-treo  at 
ton,  where 
'  -were  the 
gu(!,  in  the 
•ir  builders 
iot,  Hamp- 

Jeffei'son, 
U'esent  the 
id  religious 
iiother  and 
prhta  to  un- 
)erty.  Dr>- 
deseription 
queneo  and 
itiputes  thus 
11  who  tako 

of    iireseiifc 


8^-] 


HOSTILITY  TO  THE  FEDERAL  CONSTITUTION. 


S 


eiisioii's,  or  who  desire  from  the  study  of  the  past  t"  shape  the 
iuture  lor  the  advance  of  man. 

^  2.  Hostility  to  the  Federal  Constitution. 

It  was  well  said  by  John  Quiney  Adams  that  the  Constitution 
was  "extorted  from  the  grinding  necessity  of  a  reluctant  nation.'' ^ 
It  was  accepted  by  a  small  majority  as  the  only  alternative  to  dis- 
ruption and  anarchy.  Its  ratilication  was  the  success  of  the  men 
v.luj  were  interested  in  the  security  of  property,  the  maintenance 
i)f  order,  and  the  enforcement  of  obligations  against  those  who 
(lisired  communism,  lawlessness  and  repudiation.  It  was  a  con- 
ilirt  '  tween  the  cities  and  the  backwoods,  between  the  iiioun- 
l  liiis  anil  the  plains.^  And  the  opposition  was  led  by  those  cliques 
:;!i(l  families  who  had  learned  to  control  for  their  private  in- 
terests the  state  patronage  of  which  the  new  government  must 
necessarily  deprive  them.^ 

The  battle  was  waged  on  the  stump  and  by  pamphleteering, 
ami  g.ive  birth  to  that  great  repository  of  political  science.  The 
Fedoralist.* 

Two  States  refused  to  agree  until  after  it  had  gone  into 
successful  operation,  and  the  rest  threatened  severe  retaliation  in 
order  to  compel  their  coalition.  Five  of  the  other  nine  ratified 
with  expressions  of  disapproval  of  its  terms  and  a  demand  for 
subsequent  amendments.''     In  but  three*'  was    it  adopted  with- 


§  2.  >  .lubileo  of  tho  Constitution, 
by  John  Qiiincy  Adams,  p.  55 

''  For  iiM  aiinlysis  ipf  llio  votoon  tlio 
ralilli'atioii  of  tho  Constitution,  bco 
Till"  (Icoi^iaphii'ai  Di«lrii)iitiun  of  tho 
vnt,  on  tlio  Fi'donil  Constitution,  tiy 
O.  (.,  Lil)l]y  ;  Buili'tin  of  tin'  I'nivtT- 
sit'-  of  ■iVJHconsln,  vol.  i.  No.  1. 

'  Si'O  Li'ttciH  of  a  Lanillioldor,  liy 
Olivi-r  Ellswoilli,  aftiuwards'  Cliiof 
Justi'O  of  tlic  Uidtod  Stales,  Lfttt>r  il. 
Foid'8  Essays  on  the  Coimtltutiou, 
pp.  144,  17(!. 

*  Valuiililo  collocllons  aro  Paniph- 
lOts  on  tlio  Constitution,  and  Essays 
on  tho  Consiiiulion,  editod  Iiy  I'anl 
Loii-ostor  Ford.  Olhors  may  lio  found 
In    MoJIastur   and    Slouo   ou    Touu- 


sylvanla  and  Tho  Fedoral  Constitu- 
tion. Tho  latter  contains  ono  which 
sooms  to   1:  .uid    nioro   induonco 

than  any  oxci  j>t  tho  Federalist:  Tlio 
Now  Roof,  l.y  Francis  Ilopkin.son  ;  an 
excellent  imitation  of  Swift's  Tale  of 
a  Tub. 

^  Massachusetts,  South  CaroiUua, 
New  Hampshire,  Virginia,  New  York. 

"  New  Jersey,  Delaware,  and  Geor- 
gia. Tho  last  niM'ded  iirotootion  fnuu 
an  Indian  war  then  threatened;  tlio 
othcis,  relief  fmm  tho  State  ini|io^.ts 
at  New  York  and  rhiladelphln.  Dil.i- 
ware,  moreover,  which  was  even  tli'ii 
a  pocket  borough,  welccuiicd  the  ]io- 
litical  advantage  of  the  ]ieniiancnt 
security  of  two  seats  iu  tlio  Seuato. 


INTRODUCTION. 


[CIIAP.  I. 


out  a  struggle.  In  several,  success  was  only  obtained  by  the 
application  of  force,  threats,  or  stratagem.  In  Connecticut,  they 
silenced  with  fcir  and  feathers  an  anti-federtilist  delegate  who  tried 
to  talk  out  the  Convention.'  A  majority  of  the  New  Hampshire 
delegates  were  determined  or  instructed  to  vote  against  ratification, 
and  at  the  firet  session  the  federalists  considered  a  vote  for  an 
adjournment  of  three  months  a  victory.  At  the  second,  while  some 
of  its  opponents  were  "detained"  at  dinner,  the  Constitution 
was  ratified  by  a  snap  vote,  taken  at  sharp  one  o'clock.*  The  legis- 
lature of  Pennsylvania  obtained  a  quorum  to  call  the  State  Con- 
vention by  the  unwilling  presence  of  two  members,  dragged  to 
the  meeting  by  a  mob  who  prevented  their  leaving  the  house.® 
In  the  State  of  New  York,  a  majority  of  the  Convention  was 
anti-federal ;  and  victory  was  won  bj'  the  threat  of  Hamilton,  that 
in  case  of  defeat  New  York,  Kings,  and  Westchester  would  ratify 
the  Constitution  as  an  independent  state  and  leave  the  northern 
counties  alone  unprotected  from  foreign  enemies,  without  any  outlet 
for  their  commerce  to  the  sea.^"     The  charge  was  believed,  if  not 


'  My  authority  for  this  Is  that  no- 
complishiHl  student  of  Ani(>rlpan  his- 
tory, Paul  Lcii'ostoi-  Fonl,  Esq.,  from 
whom  I  havn  al-o  rot'elvod  olhor 
vahialilo  Information  as  to  tho  history 
of  this  poriod. 

'  A  contemporary  undated  Indorso- 
roont  on  a  letter  of  Ajiril  2.'t,  17S8,  by 
Palno  Wlni;ati"toJohn  Sulllvau,  Presi- 
dont  of  Now  Harapshiro,  says  : 

"  You  soo  that  all  tho  mombors  did 
not  vote,  only  104.  Tho  others, 
TimoHiy  Walitor  detained  a\,  his  homo 
In  this  city,  after  ho  had  given  tliom 
a  dinner,  lo  prevent  them  from  voting 
— or  u  number  of  tliem."  New  Hamp- 
BhlroHUite  Papers,  vol.  xxi,  j).  851.  Tlio 
means  of  detention  aro  unlinown.  Ae- 
cordlui^  to  tradition.  Judge  Walker 
n'fuKid  lo  admit  tl\o  meHseuger  sent 
Vy  tho  ConvcMition  to  Hunimon  the  ali- 
senl  niemliers,  and  wlu^n  tho  latter 
persisted,  threatened  to  set  tho  do(?8 
on  him.  For  this  Information  tho 
writer  Is  Indebted  to  tho  historian  of 


tho  Convention,  Hon.  Joseph  B. 
AVallcor.  Daniel  Webstor's  father, 
Capt.  Pelatlaii  Webstor,  was  a  mem- 
ber of  tho  Convention,  and  in  his  old 
ago  repeated  to  his  family  a  speeeh 
wldch  ho  claimed  that  ha  delivered 
when  ho  voted  for  tlio  Constitution 
(Curtis,  Lite  of  Web.stcr,  vol.  1,  p.  10, 
note).  Tho  records  show,  however, 
that  his  constituents  Instructed  him 
to  oi)poso  ratification,  and  that  ho 
did  not  vote  tipon  tho  question. 
(Walker,  New  Hampshire  and  tho 
Federal  Convention.) 

»  A  re])ort  of  tlio  procotxllngs  and 
deliato  is  to  bo  found  In  Proceed- 
ings and  Debates  of  tho  General 
Assembly  of  Pennsylvania,  takon  in 
shorthand  by  TImmas  Lloyd,  Ptdla- 
delphia,  1787,  vol.  1,  p.  115;  roi)rlnted 
and  corrected  in  Pennsylvania  and  tho 
Federal  Constitution,  by  Johti  Rach 
MeMnster  and  Frederick  D.  Stono, 
ch.  11,  pp.  27-73. 

w  Letter  of  Georgo  Clinton  to  John 


§2.] 


HOSTILITY  TO  THE  FEDERAL  CONSTITUTION. 


jjroved,  that  the  Federalists  prevented  the  circulaticn  of  the  news- 
papers of  the  opposition  with  the  mails.'*  And  in  Pennsylvania 
and  Maryland  they  suppressed,  by  purchase  and  boycott,  the 
reports  of  the  debates  in  the  State  Conventions.*^ 

The  Federal  Convention  itself  held  its  debates  in  secret  for 
fear  lest  the  public  should  become  so  excited  that  there  would  be 
no  hope  of  any  successful  result  of  the  deliberations.  Twice  at 
least  was  it  on  tlie  point  of  breaking  up  in  despair.  So  little 
hope  did  there  seem  of  any  practical  result,  that  at  last  the 
sceptic  Franklin  advised  his  colleagues  to  take  refuge  in  pr.iyer.** 
Even  at  the  end,  it  was  the  belief  of  the  strongest  supporters 
of  the  CoiLstitution,  that  it  could  not  held  the  country  together 
for  more  than  a  few  years." 

Elements  of  discord  abounded  in  that  small  assembly.  The 
States  which  were  prominent  in  wealth  and  population  protested 
against  the  injustice  of  vesting  tlie  control  elsewhere  than  in  a 
majority  of  jiopulation  or  of  property.  The  smsxller  States, 
wliifh  in  the  Continentiil  Congress  and  under  the  Confederation 
had  an  eciual  vote,  insisted  that  they  would  never  surrender 
the   right   wliich   they   had    thus    obttiined.      The   communities 


Laral),  Clinton  MS8.,  Now  York  State 
Libra  rj. 

"  r(!nn8ylvanla  and  The  Fede- 
rn.l  Constitution  by  McMaster  and 
Stoiio. 

1-  Il)ld  5Iy  Information  as  to 
Maryland  Is  also  dorlvod  from  Mr. 
Forcl. 

"  JladlHon  rnpoi'B,  Elliot's  Debates, 
2(1  <>(!.,  vol.  V,  1).  '253. 

"  (Toiivornour  Jlorris  wrote  Walsh, 
Fob.  5,  1811 :  "Fond,  howovor,  as 
Ihdfoiindcrsof  our  national  Conatltu- 
tlon  were  of  ri'puliUcan  government 
they  \v(uo  not  ko  much  blinded  by 
their  attachment  as  not  to  dlscom 
the  (lUTloully,  porhaps  Impracticabil- 
ity, of  raising  a  durable  oiiifloo  from 
criimblinK  niiiti-rlals.  History,  the 
paroiit  of  polllioul  science,  had  told 
them  that  it  was  almost  as  vain  to 
expect  permanency  from  democracy 


as  to  conBtruct  a  palace  on  the  sur- 
face of  the  sea."  In  the  same  letter, 
Morris  said  of  Hamilton:  "General 
Hamilton  had  little  share  In  forming 
the  Constitution.  lie  rllsliked  it,  be- 
lieving all  republican  governments 
to  be  radically  ilofe(;tive.  Ho  ad- 
mired, nevertheless,  the  Britlali  Con- 
stitution, which  I  conKidor  an  aris- 
tocracy in  fact,  thougli  a  <i;onar- 
chy  In  name.  .  .  .  lie  heartily 
assented,  nevertheless,  to  tlio  Consti- 
tution, because  ho  considered  it  as  a 
bond  which  might  hold  us  togetlier 
tor  some  time,  and  ho  I;now  that 
national  sentiment  Is  the  ofTspring  ot 
national  existence.  Ho  trusted, 
moreover,  that  In  the  changes  and 
chances  of  time  we  should  bo  In- 
volved in  Pome  war,  wlileh  ndght 
strengthen  our  union  and  nerve  the 
ezeoutivo."    See  infra,  §  8,  note  2. 


6 


INTRODUCTION. 


[chap.  I. 


1        §-5-] 


of  slaveholders  refused  consent  to  iiny  provisions  which  c:i- 
dimgered  tlieir  right  of  proi)erty  in  human  chattels.  The  (1l- 
sceudants  of  the  I'uritans  in  the  North  had  conscientious  scruples 
against  the  recognition  of  the  legality  of  slavery.  The  recol- 
lection of  the  ojjprtssions  hy  the  Stuarts  and  the  Guelphs  and 
the  history  of  the  fall  of  the  republics  of  Greece  and  Italy 
caused  a  fear  in  some  that  any  elements  of  strength  which  might 
be  vested  in  the  government  of  the  whole  would  be  used  as  in- 
struments for  the  8up2)ression  of  lilwrty  in  all  its  parts.  The 
contemptible  position  of  the  United  States  at  home  and  abroad ; 
their  inability  to  enforce  obedience  to  their  laws,  to  pay  their 
debts,  to  collect  revenues,  to  negotiate  treaties  of  connnerce 
with  foreign  governments,  and  to  protect  either  the  individual 
States  or  their  own  t'ongress  from  domestic  violence,  inspired  in 
othei-s  the  belief  that  liberty  was  of  far  less  consequence  than 
stability  and  security,  and  made  them  seek  os  far  as  possible  to 
strengthen  the  central  government  and  remove  it  from  the  control 
of  the  people.  The  Constitution  was  based  on  compromises,  but 
the  results  of  those  compromises  have  proved  so  salutary,  that 
but  one  of  them  has  hitherto  been  overthrown. 

§  3.  Anarchy  precoding'  the  Federal  Convention. 

The  reaction  from  the  patriotism  which  carried  the  Revolution 
to  a  successful  termination  left  the  people  of  the  United  States  in 
the  most  contemptible  position  that  they  have  ever  occupied.  The 
Articles  of  Confederation  gave  Congress  power  to  incur  debts,  but 
no  means  of  paying  them,  except  such  as  might  be  derived  from 
the  vohintary  contributions  of  the  several  States  to  meet  the 
requisitions  imposed  which  it  could  vote  but  not  collect.'  The 
result  wiis  a  bankruptcy  of  the  common  treasury,  due  to  a  refusal 
of  many  States  to  supply  the  funds  necessary  to  pay  the  arrears 
due  to  creditors  at  home  and  abroad,  even  to  the  soldiers  wlio  had 


§  3.  »  B(!twopn  1782  and  1787,  Now 
Hampshire,  North  Corolina,  South 
Carolina  and  Oi-orfila  paid  no  tnxos. 
r/onnocMcut  and  Delaware  imo-tliird; 
MaHsarhusptts,  Rhodo  Island,  and 
Maryland  about  oni>-half;  Virginia 
threc-flflhs;  FoDDsylvanla  nimrly  thu 


wholo;  and  New  York,  which  dorivod 
a  largo  roveniio  from  an  impoRt,  nioro 
than  thoir  rospooti'O  quota.  (Ham- 
ilton, in  the  Now  York  li'Klslnturo,  in 
favor  of  a  national  impost,  1  Amorlcau 
Museum,  446-448.) 


§3.] 


AXAHCHY  IMIKCKDINO  THE  KEDEUAL  CONVENTION'. 


risked  their  lives  and  wasted  their  estates  in  tlio  struggle  with 
(Jreat  Britiiin.  The  need  of  a  federal  judiciary  had  been  jjiiin- 
fully  apparent  throughout  the  war,  from  the  technical  inconven- 
icnees  caused  by  the  condenuiation  of  prizes  in  State  courts  of 
admiralty,  some  of  whom  would  not  respect  acts  of  Congress  un- 
less first  adopted  by  the  individual  State  legislatures.  After  tlie 
war,  the  observance  of  those  articles  of  the  Treaty  of  Peace  which 
jirotected  the  jiroperty  of  the  Tories  and  debta  due  British  sub- 
jicts,  was  prevented  by  acts  passed  by  the  Stiite  legislatures  in 
opposition  to  them,  whicli  in  many  instances  the  Sfcite  courts 
respected.  This  gave  Great  IJritiiin  an  excuse  for  keejjing  garri- 
soiiB  in  different  posts  of  the  United  States  and  in  refusing  to 
confoiTn  to  other  articles  by  whicii  she  was  bound.  At  the  same 
time  tlie  debtor  class,  which  had  been  such  an  important  factor  in 
the  revolution,^  manifested  a  similar  <lesiro  to  avoid  payment  of 
debts  due  citizens  of  the  United  States.''  Stay  laws  which  im- 
peded the  collection  of  judgments,  tender  laws  which  permitted 
debtors  to  meet  their  obligations  in  State  bills  of  credit  or  land 
or  commodities,  at  a  valuation  fixed  by  juries,  and  otiier  ii.  ^  li- 
ments  to  creditora,  were  passed  by  different  legislatures.  Many 
debtors  were  not  satisfied  with  these  palliatives.  They  demanded 
nothing  siiort  of  the  cancellation  of  indebtedness  and  the  destruc- 
tion of  all  rights  of  property.  Men  re-echoed  the  doctrines  of  the 
levellers  ■•  in  Cromwell's  army  and  applauded  tlie  tiile  in  Plutarch 
of  tlie  King  of  Lacedaemon  who  burned  all  promissory  notes  in 
th(>  market-place  of  Spartii.^  Conventions  were  lield  where  it  was 
claimed  that  all  property  ought  to  be  held  in  common,  because  all 


'  Soo  Sumnor's  Llfo  of  Hamil- 
ton, pp.  47-52.  John  Adams  rooorda 
tlirit.  on  liirt  return  from  Congress  In 
1774,  an  old  oliont  warmly  congratu- 
lated lilni  u];on  the  glorious  work  of 
Cou;;reKB  In  onoo  more  suspending  the 
ootirts.     Works,  vol.  11,  p.  4i!0. 

"When  AiKlrew  Jackson  moved  to 
West  Tenni'Hseo  In  17K8,  ho  found  but 
ono  other  lawyer  there.  The  latter 
had  hocn  retained  by  the  members 
of  the  debtor  class,  who  were  very 
powerful  In  that  frontier  community, 


so  that  the  croditora  could  not  use 
legal  process  to  collect  what  was  due 
them.  Attempts  were  made  to  drive 
Jackson  from  the  State  for  taking 
collection  cases ;  but  he  was  not  to  be 
Intimidated,  and  so  obtained  an  as- 
sured practice  at  his  start.  Kendall's 
Life  of  Jackson,  pp.  83-90. 

*  The  name  was  then.  In  common 
use.  8eo  Letters  of  a  Federal  Farmer, 
by  B.  H.  Lob,  p.  37 ;  Ford's  Pamph- 
lets on  the  Constitution,  p.  32. 

'  Plutarch's  Llfo  of  Agis. 


8 


INTRODUCTION. 


[chap.  I. 


had  aided  in  saving  it  from  confiscatiftn  by  the  power  of  England.* 
Tcxes  were  voted  to  Iw  needless  burdens,  courts  of  justice  to  be 
intolerable  grievances,  and  lawyers  a  common  nuisance.^  These 
doctrines  were  embraced  by  at  least  twelve  thousand  men  in  the 
New  England  States,  with  correspondents  in  the  South,  prepared 
to  enforce  tliem  by  the  ballot  if  that  were  practicable,  otherwise 
by  an  appeal  to  arms.'  Such  an  appeal  was  made  in  Massachu- 
setts in  tlie  fall  of  178(5,  by  the  outbreak  known  as  Shay's  llebel- 
lion.  Fifteen  hundred  men  under  the  leadership  of  Captain  Daniel 
Shay  met  in  the  counties  of  Worcester  and  Hampshire.  The  coui-ts 
of  justice  Avere  the  firet  objects  of  their  attack,  and  their  sessions 
were  forcil)ly  closed.  When  tiie  first  body  of  militia  met  them  on 
the  field,  many  of  the  militiamen  changed  sides  and  joined  tho 
insurgents.  Congress  liad  no  power  under  the  Articles  of  Con- 
federation to  afford  nlief."  Wlieu  the  rebellion  was  threatened 
it  refused  even  tlie  loan  of  arms.'"     Wlien  tlie  civil  war  broke  out 


•  Seo  Miulisoii's  romiiiks  in  tho 
Federal  Convention.  Miulison  Papers, 
Elliot's  Deljutes,  2il  od.,  vol.  v,  p.  -103. 

'  Curtis'  Constitutioniil  History  of 
tho  United  Slates,  vol.  i,  p.  IKl. 

*  This  was  tho  estimate  of  (Jennnil 
Knox.  Suo  II  letter  from  Washington 
to  Madison,  Wabhingtuu's  Worlis,  1st 
ud.,  p.  207,  cited  by  Curtis,  ibid.,  vol. 
1,  p.  184.  At  about  llie  samn  time 
nttempts  similar  to  tliat  of  Sliay  were 
mndo  in  New  Hampshire,  Vrrmont, 
Conueelieul,   and  Jlarylaiul. 

'  "A  |>o\ver  to  interfere  in  tlio  in- 
teniid  eo'.ieerns  of  a  Siato  eoulil  oidy 
hive  been  e-Kereised  liy  a  bro.id  eon- 
struetioM  of  tiio  tliird  of  the  Ar;iilos 
o?  Confeiieration,  wliieli  was  i:i  tlieso 
words:  'Tliesaid  Slates  luT-iiy  sev- 
eraliy  enter  Into  n  firm  leajjiie  of 
friendsliip  with  oaeh  otlier,  for  their 
eoniinon  defence,  tiie  somirlty  of  tlieir 
lilnTtles,  and  tlieir  lautual  and  gcu- 
er.il  welfare;  bindhin  tliemselves  to 
assist  oaeh  other  against  all  foree  of- 
fered to  or  attacks  made  npon  tlieni, 
or  any  of  them,  on  account  of  relig- 
i.   :,  sovereignty,  trade,  or  any  other 


jiroteneo  whatever.'  Wlien  this  is 
compared  wllh  tlio  clear  and  oxi)lic.lt 
provision  in  tho  Constitution,  by 
which  It  is  declared  that  '  tlie  Uiutod 
suites  sh;ill  guarantee  to  every  St.ite 
in  this  Union  a  republican  furiii  of 
government,'  there  can  be  no  wonder 
that  a  uoulit  was  felt  in  tlio  Coii;^ros8 
of  17KIi-87  as  to  th<'ir  powers  iiih)-i  this 
subject.  It  Is  true  that  tlie  JIi.s3.i- 
chusetts  di'legation,  wlien  they  laid 
before  Congress  the  m<-asures  wliich 
had  bei-n  taken  liy  the  State  g>)vern- 
ment  to  suppress  the  insurrection, 
exiiressi-d  tlie  cuiilldenci!  of  the  l.'^ia- 
latiire  tlial  tlie  (irmest  support  and 
mo.it  elTeetual  iild  would  have  lieen 
afforded  by  the  United  Stales  had  it 
been  nocessiirj-,  and  asserl'd  that 
such  support  and  aid  were  o.spressly 
and  .solemnly  stipulated  by  llio  Ar- 
ticles of  Confederation  (.lournals,  xU, 
20,  March  !.",  1787).  But  this  was 
clearly  not  tho  ease  ;  and  it  was  not 
generally  supposed  in  Congress  that 
tho  power  oxi.-<led  by  implication." 
Ibid.,  p.  178,  nolo  1. 

1"  When  tho  insurrection  woatliroat- 


§  3.]        ANARCHY  PUECEDINO  THE  FEDERAL  CONVENTION. 


» 


and  it  seemed  as  if  Shay's  followers  would  win  in  .Alassachusctts^ 
and  similar  attempts  were  made  by  debtors  to  close  the  courts  in 
other  States,  a  vote  passed  to  raise  troops,  avowedly  for  another 
purpose,  who  might  be  used  to  suppress  tiie  insurrection ; "  but 
the  success  of  Governor  Bowdoin  and  the  State  militia  caused  the 
abandonment  of  the  attempt.'^ 

It  was  small  wonder  that  Congress  hesitated  to  overleap  its- 
powers  to  afford  protection  to  a  State  when  it  had  found  tliat  it  was^ 
unable  to  protect  itself.  Three  years  before,  a  squad  of  eighty 
mutineers,  justly  indignant  at  not  having  received  their  pay,  had 
made  the  Congress  of  the  United  States  flee  from  Philadelpliia  ta 
Trenton."* 


encd,  Massachusetts  had  asked  the 
loan  of  sixty  ploi-es  of  Held  artil- 
loiy.  TiKMippUcation  was  refused  by 
tho  negative  vote  of  six  States,  one 
being  dlvliled,  and  tho  delegation 
from  Mussa<'husetts  alone  supported 
It.  Journals,  05-G7,  April  19,  1787; 
Curtis,  ibid.,  p.  182. 

"  When  Coiigioss  received  the 
news  of  tho  actual  outlirnak,  taking 
tho  excuse  of  an  iiUegod  hostility  on 
the  part  of  corUiln  Indian  trlbea, 
thoy  uuaniniou.sly  rosolvoil  to  raise 
ouo  tliouH.iiKl  three  hiiudrud  and  forty 
addltiou.il  tioop.s  in  the  New  England 
States,  one-lialf  of  them  by  tlio  State 
of  Jlast-achusuUs,  to  serve  for  tlio 
term  of  lliiee  jears,  for  tho  protec- 
tion and  supi  ort  of  tho  western  States 
and  Ihe  JIis.-lssi|Jiil  settlements,  and 
to  secure  and  facilitate  tho  Gurvey- 
ing  and  selling;  of  tlio  public  lands; 
but  re:iliy  for  tlie  purpose  of  aiding 
tlio  Stat(!  of  Mas.-sacliusotts  in  quelling 
tho  Insurrection.  Journals,  xi,  p.  25M, 
Oct.  .1(1,  ITHfi.  Ibid.,  p.  182.  Soo  also 
Jliidlson  Tapers,  Elliot's  Debate.^,  2d 
eil.,  vol.  V,  p.  95. 

'-  Seo  Remarlis  on  tho  Proposed 
Plan  of  a  Federal  (iovernment,  by  Al- 
exander C'oiiteo  Hiinsim,  afterwards 
clianeellor  of  Maryland,  Ford's  Pam- 
phlets on  the  Constitution,  p,  2il. 


18  Mpdlson  has  given  tho  following 
account  of  this  occurrence:  "On  tlio 
ISth  of  June,"  1783  "Congress  re- 
ceived information  from  the  Exeeutlvo 
Council  of  Pennsylvania  that  elf;lity 
soldiers,  who  would  probaldy  bo  fol- 
lowed by  others,  were  on  tlie  way  from 
Lancaster  to  Philadelphia,  in  spite  of 
tho  expostulations  of  their  oUleers, 
declaring  that  tliey  would  jiroi  eed  to 
tho  neat  of  Congress  and  demand  jus- 
tice, and  Intimating  designs  against 
tho  ))auk.  A  committee,  of  which 
Colonel  Hamilton  was  cliairnian,  was 
appointed  to  confer  witli  the  execu- 
tive of  Pennsylvania,  and  to  lalvo  such 
measures  as  they  sliouM  (hid  neces- 
sary. After  a  conference,  tlio  co:iiiiiit- 
teo  reported  that  it  was  tho  opinion 
of  tho  executive  that  tlio  militia  of 
Philadelphia  wouUl  probaldy  not  bo 
willing  to  take  arms  before  tliey 
should  bo  provoked  by  some  actual 
outrage;  tliat  it  would  hazard  tho 
authority  of  government  to  make  tho 
ottempt ;  and  tliat  It  would  bo  neces- 
sary to  let  the  soldli>rs  oonio  into  the 
city,  if  tlio  olllcers  who  had  gone  out 
to  meet  them  could  not  stop  them. 
Tho  next  day  tho  foldlois  ai.'ived  In 
tho  city,  lod  by  thi-lr  sergeapis,  and 
professing  to  have  no  other  , inject 
than  to  obtaiu  a  settlement  of  ao- 


10 


INTIIODUCTION. 


[chap, 


Un:il)le  to  cuinmand  either  the  purae  or  the  sword,  CongreBs 
was  iilKUidfined  by  tlie  ablest  statesmen  and  politicians  in  tl>e 
coniitiy.  The  State  legislatures  ■  alone  could  raise  by  taxation 
the  money  which  they  appropriated,  and  in  them  and  the  oihces 
which  they  created  ambitious  men  preferred  to  seek  employment. 
Congress  was  so  much  despised  that  it  became  almost  impossible 
to  collect  a  quorum,  and  more  than  twenty-five  delegates  were 
rarely  found  there."  At  no  time  before  the  Federal  Constitution 
were  all  the  States  represented  at  once.'^ 

The  ill  effects  resulting  from  the  inability  of  the  United  States 
to  regulate  commerce  were,  however,  those  which  were  most  se- 


counte,  which  thoy  supposed  they  had 
a  Ipottcr  chance  for  at  FhUudolphla 
than  at  Lnncastor.  On  the  2l8t  they 
■wore  drawn  up  In  the  street  before 
the  State  IIouso,  where  Congress  wore 
asscinliled.  The  Executive  Council  of 
the  State,  sitting  under  the  same 
rocif,  was  called  on  for  the  proper  In- 
tor|iosition.  The  president  of  the 
State  (Dickinson)  came  In  and  ex- 
plained the  dlfllculty  of  bringing  out 
the  militia  of  the  place  for  the  sup- 
pression of  tlio  mutiny.  Ho  thought 
that,  without  Eonio  outrages  on  per- 
sons or  i)roperty,  the  militia  could 
not  bo  rolitnl  on.  General  St.  Clair, 
then  In  rhiladelphia,  was  sent  for, 
and  (iosiriKl  to  u.=o  Ills  Interposition, 
In  order  to  prevail  on  the  troops  to 
icturn  to  tlic  barraclcs.  But  his  re- 
port gave  no  encouragement.  In  this 
posture  of  things  it  was  proposed  by 
Mr.  Izard  that  Congress  should  ad- 
journ. Colonel  Hamlllon  proposed 
that  General  St.  Clair,  In  concert 
\rlth  tho  Executive  Council  of  the 
State,  should  taijo  order  for  terminat- 
ing tlio  nmtlny.  Mr.  Keed  moved 
tliat  tho  general  should  endeavor  to 
withdraw  tho  mutineers,  by  assuring 
them  of  the  disposition  of  Cotigross 
to  do  them  justice.  Nothing,  how- 
ever, was  done.  The  soidlers  re- 
ointned  in  their  position,  occasionally 
filtering  offensive  words  and  pointing 


their  muskets  at  tho  windows  of  Iho 
hall  of  Congress.  At  the  usual  hour 
of  adjournment  the  members  went 
out,  without  obstruction,  and  the 
soldiers  retired  to  their  barracks.  In 
tho  evening  Congress  reassembled, 
and  appointed  a  comrnltteo  to  confer 
anew  with  the  executive  of  the  State. 
This  conference  produced  nothing  but 
a  repetition  of  tho  doubts  concerning 
tho  disposition  of  tho  militia  to  act, 
unless  some  actual  outrage  wore  of- 
fered to  persons  or  property,  tho 
Insult  to  Congrofis  not  being  deemed 
a  sulDcient  provocation.  On  tho 
24th,  tho  efforts  of  the  State  authority 
being  despaired  of.  Congress  were 
summoned  by  tho  president  to  meet 
at  Trenton."  Tho  mutiny  was  after- 
wards suppressed  by  marching  troops 
Into  Pennsylvania  under  Major-flen- 
oral  Howe.  Journals,  vlU,  281.  (Cur- 
tis' Constitutional  History  of  the 
United  States,  vol.  1,  p.  149,  note  1.) 
Soo  also  Madison  Papers,  Elliot's  De- 
bates, 2d  ed.,  vol.  v,  pp.  92-94. 

M  Curtis'  History  of  the  Constitu- 
tion, vol.  I,  pp.  153,  228. 

"  Boport  of  a  committee  appointed 
to  devise  means  for  procuring  a  full 
representation  in  Congress,  made 
Nov.  1,  1783.  Journals,  vol.  vill,  pp. 
480-4S2,  cited  by  Curtis,  ibid.,  vol.  1, 
p.  154,  note. 


•i;  8.]        ANAHCHY  I'UIIC'KDINU  TIIK  KKDIiUAL  CONVKNTIOX. 


11 


veivly  felt.  New  York  iiml  KIioilo  IsLuid,  wliich  eontiiiiuHl  thd 
piiuLipiil  hiirljora,  luid  refused,  llie  latter  absolutely,  the  foruicr 
except  on  inipnieticahle  ct)uditi()ii8,  to  consent  to  the  amendment 
of  the  Articles  of  Confederation  so  as  to  permit  Congress  to  tax 
imports.^"  Attempts  to  negotiate  advantageous  treaties  of  com- 
merce were  met  hy  the  ministei's  of  foreign  countries  with  the 
objection  that  the  United  States  had  no  power  to  compel  com- 
pliance with  those  promises  which  they  made  as  a  consideration 
for  the  stipulations  binding  upon  the  other  parties. i'  'I'he  power 
to  threaten  as  well  as  to  promise  was  also  out  of  their  possession. 
CJrc  it  Hritain  had  extduded  from  her  dejjendencies  in  the  West 
Indies  tlie  lisli  and  other  principal  exports  of  the  United  States; 
but  Cf)ugress  had  no  power  to  retaliate  by  discriminating  duties 
upon  the  cargois  of  Hritish  ships  or  an  embargo.  While  Great 
Uritain  discriminated  against  the  products  of  our  commerce.  Spain 
blocked  the  road  by  preventing  the  free  navigation  of  the  .Anssis- 
sippi.  Congress,  powerless  to  i)rotect  this,  which  was  indispensa- 
ble to  the  prosi)erity  of  the  Stiites  west  of  the  AUeghan}-  Mountains, 
seemed  on  the  point  of  conceding  it  in  return  for  conuuercial  ad- 
vantages of  minor  importance.^*  Even  the  power  to  regulate  trade 
upon  waters  wholly  within  the  United  States  was  vested  nowhere, 
unless  in  a  bay  or  river  entirely  within  a  single  State.  The 
States  which  had  no  ports  for  foreign  commerce  were  oppressed 
by  tolls  levied  upon  them  at  the  jdaces  where  their  goods  were 
shipped.  "New  Jei-sey,  placed  between  Piiiladelphia  and  New 
York,  was  likened  to  a  cask  tapped  at  both  ends ;  and  North 
Carolina,  ])etweeu  Virginia  and  South  Carolina,  to  a  patient 
bleeding  at  both  arms."  ''' 


10  Curtis'  ConstituUonnl  History, 
vol.  i,  \i\).  IIG,  UH,  107,  2;n,  243. 

"  Soe  tho  letter  written  by  the 
Duk«  of  Dorset,  English  anibiissn- 
dor  at  Paris,  to  tho  commissioners 
Bflnt  to  Kiiropo  to  negotiuto  commer- 
cial treaties,  March  26,  1785  ;  Diplo- 
matic Corrosponilence,  vol.  11,  p.  297, 
quoted  in  Curtis'  Constitutional  His- 
tory of  tho  United  States,  vol.  1,  p. 
194,  note  8. 

w  Infra,  §  9,  note  4. 


i"  Madison's  Introduction  to  tho 
Debates  In  tlio  Federal  Convention. 
Elilot'8  Debates,  2d  od.,  vol.  v,  p.  112. 

"  Tho  Stale  systems  aro  the  ac- 
cursed tiling  which  will  prevent  our 
being  n  nation.  Tlie  democracy 
might  be  managed,  nay,  it  would 
remedy  Itself  after  being  Hufileieutly 
fermented;  but  the  vU.  .itate  govern- 
ments are  sources  of  pollution  which 
win  contaminate  the  American  name 
for  ages,  machines  that   must  pro- 


12 


INTKODUCTION. 


[chap.  I. 


To  tlie  disgrace  and  suffering  of  those  five  years  we  owe  our 
suliHcqufnt  proHperity.  Nothing  Imt  the  burden  of  the  evils 
wliiih  then  oppressed  them  would  have  induced  the  people  to 
place  those  brakes  upon  the  exercise  of  their  own  wills  and  that 
nia(;lunery  in  the  hands  of  the  central  government  which  have 
maintained  our  public  and  private  financial  credit  and  put  down 
rebellion  as  well  as  repelled  invasion.  Had  the  men  of  that  time 
not  experienced  the  mischief  of  unbridled  popular  license,  and 
State  statutes  passed  in  the  free  exercise  of  local  jealousies,  they 
would  have  rejected  the  Constitution  as  an  instrument  savoring 
of  tjranny.  Congress  would  have  been  denied  the  power  of 
tiixiition.  The  States  would  have  been  engaged  in  constant 
quarrels  over  retaliatory  1-.  gislation.  Travellers  and  goods  would 
have  been  stopped  by  custom-houses  at  the  border  of  each  State. 
Pe.ace  in  the  South  after  the  close  of  our  Civil  War  could  have 
never  been  restored  without  a  decimation  of  tlio  leaders  of  the 
revolt.  The  naticuial  and  State  legislatures  would  have  the 
power  of  taking  property  without  due  process  of  law ;  and  credit 
would  have  been  ruined  by  the  enactment  of  laws  which  impaired 
the  obligation  of  contracts. 


8  4.  Previous  Attempts  nt  Union. 

The  thirteen  colonies  had  in  law  no  coniiectiou  with  each 
other  except  through  the  ties  binding  eacli  to  tlie  motiier  country. 
Great  Britain  assumed  the  duty  of  protecting  tlieni  against 
foreign  foes,  and  in  return  hampered  their  conunercu  so  that 
it  might  be  confined  to  the  exclusive  ailv;nit!go  of  Engli.sli 
merchants.  The  need  of  some  arrangement  through  wliich  tiny 
could  plan  together  feu-  their  couunou  defence  \\an  e.-,ily  feU. 
]?ut  mutual  jealousy  as  well  as  royal  discouragemeiit  made  the 
attempts  abort.  It  was  not  until  tiiey  felt  the  oppression  of 
the  central  power  that  they  all  combined.  The  lefusal  of  the 
others  to  allow  the  largest,  j\Iassachusctts,  more  tliun  an  equal 
voice  in  their  deliberations  kept  the  New  England  colonies  from 
a  treaty  of  alliance  against  their  surrounding  enemies,  until  the 

duco  ill,  Imt  cannot  produce  good ;  King,  July  Ifi,  17S7.  llufua  King's 
sniito  them  in  the  nnmo  of  Goil  nntl  Lifu  iiuU  Corrcspondenco,  vol.  1,  p. 
tlie  pooplo."    Geu.   Knox    to    llufus      228. 


§4.] 


I'KEVIOUS  ATTKMI'TS  AT   UNION. 


18 


civil  war  inado  Englan<l  abandon  them  to  their  own  resources. 
Kvcn  then,  tlio  New  Enghmd  Confedemtion  of  1048  '  was  too  nar- 
row for  the  admission  of  Rhode  Ishiud ;  was  unable  to  always 
obtain  the  obedience  to  its  requisitions  by  Massacliusetts ;  '^  exer- 
cised little  power  after  tlie  restoration  of  Charles  II ;  and  did  not 
survive  his  reign. 

The  deposition  of  James  II  defeated  his  project  of  uniting 
the  New  England,  and,  if  possible,  all  the  colonies,  under  a  single 
governor-general.  Under  William  and  Mary,  John  Locke,  whose 
philosophy  could  apjireciute  the  benefit  of  freedom  for  I'2nglish- 
men  at  home,  but  not  in  the  colonies,  suggested  the  aj)pointnient 
of  a  captain-general  of  North  America,  with  arbitrary  powere;* 


n  with  each 
tiler  country, 
liem  against 
erco  80  that 
of  English 
11  whit'li  till  y 
iw  eiuly  fell, 
■lit  made  the 
iipprcssion  of 
L'fusal  of  the 
Kin  an  equal 
colonies  from 
lies,  until  the 

lliifua  King's 
onco,   vol.   i,  J). 


§  4.  1  Tho  nrtii'Ios  provided  ;  — 
"  VIII.  It  is  nlso  a^rood  that  tlio  Com- 
inisslonors  for  thin  Confodoracoii  horo- 
aftor  at  tlieir  mootlngs,  whether  ordi- 
nary or  extraordinary,  ns  tli(>y  may 
have  coinmlHslou  or  opertuultlp,  do 
ondoavouro  to  frnnio  nud  eslabllsh 
agreements  and  orders  in  genorull 
cases  of  a  eivlll  nature  wliereln  ail 
tho  plantaeons  nro  interested  for  pro- 
Borving  iioaco  amonK  themseliios,  and 
preventing  as  n.uih  us  may  boe  all 
oeeatlous  of  warr  or  differiMioo  wltli 
others,  as  about  tho  free  and  speedy 
passage  of  Justice  In  every  ,Juris- 
diocon,  to  all  the  Confederals  equally 
ns  thoir  owne,  reeelving  those  tliat 
romoue  from  one  plantaeou  to  an- 
other without  duo  eortofyeats;  how 
nil  the  Jurisdiccons  may  eorry  it 
towards  tho  Indians,  tliat  they  neither 
f^row  insolent  nor  bo  injured  without 
duo  siitisfai'i'ion,  lest  warr  brealc  In 
vpou  tlio  Confederates  through  sueh 
mlscarrynge.  It  is  also  agreed  that 
if  any  servant  runn  away  from  his 
master  into  any  other  of  these  eoufed- 
erated  Jurisdiceous,  That  in  sueh 
Case,  vpon  tho  Certyflcate  of  one 
Majistrato  in  tho  .lurisdieeon  out  of 
which  the  said  servant  lied,  or  upon 
other  due  proofo,  the  said  servant 
shalbe  doliured  cither  to  his  Master 


or  any  other  that  pursues  and  brings 
such  Certilh'ato  or  proofe.  And  that 
vpon  tho  oscai)e  of  any  prisoner  wluit- 
goover  or  fuj^itiuo  for  any  criminal 
cause,  whellier  bre:iUlng  prison  or 
getting  from  tlie  ofiii'i-r  or  otlierwiso 
oscapiiig,  upon  the  certKicnte  of  two 
Majistrates  of  Ihe  Jurlsdiccon  out  of 
wliich  tlie  escape  is  mndo  tliiit  he  was 
a  prisoner  or  sui'ii  an  offender  at  tbe 
tyme  of  tho  e.sciipe.  Tlio  M.ijestrates 
or  some  of  tlicm  of  that  Jur'.sdiecon 
where  fcr  tho  present  the  anid  pris- 
oner or  fu^'ilivo  abideth  slmll  forth- 
with grauiK  such  a  warrant  as  the 
case  will  beare  for  tlie  nppreliending 
of  any  such  jierson,  n:id  the  d. 'livery 
of  him  into  the  hands  of  the  olllcer  or 
other  person  that  pursues  him.  And 
If  there  bo  help  rerjuired  for  the  safe 
retumeing  of  any  such  offender,  tlien 
it  shall  be  graunted  to  him  that  craves 
the  same,  he  paying  the  charges 
thereof."  Preston's  Documents  Illus- 
trative of  American  History,  pp. 
92-03. 

^  See  tho  remarks  of  Madisnn  in 
tho  Virginia  Convention  of  IJatiflca- 
tion,  Elliot's  Debates,  2d  ed.,  vol.  ill, 
p.  133. 

'  "Mr.  Locke,  with  other  philoso- 
phers, Bolomnly  advised  that  prince 
—  William  III  —  to  appoint  a  cap- 


14 


INTIidlMCTlON. 


[chap.  r. 


il 


ii:i(l  William  Puiin,  tlio  siiinnions  of  a  ('otiprcss  with  two  deli'giites 
i'loiii  filch  t'oloiiy,  to  sit  ill  New  ^'ork,  iiiMlcr  tlu;  i)ri'siik'iK'y  of  tho 
(ioviTiior  lis  tlie  Kiii;f"s  llifrji  ( 'ouimi.ssioiiLT,  " after  tiie  manner 
of  Seotlaiid."^  In  1721,  tho  exigencies  of  tho  conflict  with  France 
for  the  eontrol  of  North  America  Iiroiifrht  forth  a  sclieme,  said 
to  liave  heen  drafted  hy  Lord  Stairs,  wliieh  eonihined  the  KU;:;j^e8- 
tions  of  Pcnn  anil  Locke.  All  of  these  jilans,  however,  remained 
in  the  pij^eon-holes  of  the  Board  of  Trade.  A  few  conferences 
of  colonial  povernoi's  or  commissionprs,  in  at  least  one  instance 
called  a  conj^rcss,''  were  licld  at  the  suggestion  of  the  crown,  to 
regulate  treaties  with  the  Indian  trihes  and  to  fix  the  men  and 
money  which  eacli  slioulil  eontriliute  to  the  common  defense." 
Under  (icorge  II,  in  1704,  tlie  same  cause  led  to  a  congress  at 
Albany  of  representatives  from  seven  colonies,"  who  made  a  treaty 
with  tiie  six  nations  and  drafted  a  jilan  of  union,  to  he  set  in 
operation  liy  an  act  of  Parliament.  This,  which  was  largely 
drawn  hy  Franklin,  vested  the  oontrol  of  war,  Indian  affaiw,  the 
acquisition  of  new  territory,  and  the  government  of  new  settle- 
ments, in  a  president-general  apjiointed  hy  the  crown  and  a  grand 
council  chosen  hy  the  colonial  legislatures ;  each  colony  to  hive 


tain  K''i"''"i'l  nvci'  tlio  colonies,  witli 
diolnloiliil  power  to  levy  mid  eorniimiid 
an  aniiy  without  their  own  ooiisenl, 
or  oven  the  iipproliiUion  of  I'lirliii- 
menl."  ChalmerK'Iiitioiliiellon  IoTIk! 
Bovolt  In  tho  Colonies,  Boolt  VII,  eli. 
xxvli. 

■•  Ponn's  Pliin  ot  Union,  presented 
to  the  Itoiird  of  Tr  ule : — 

"  That  t  heir  br.rtlness  shall  be  to  honr 
and  adjust  all  inatteis  of  Complaint  or 
dilT(!ren!'e  between  Province  and  Prov- 
ineo.  As,  Irit,  where  ])ersons  qidt 
their  own  Provliioo  and  (joo  to  an- 
other, tl-.at  they  may  avoid  their  just 
debts,  (ho  they  be  alile  to  pay  tlieni, 
2nd,  whei,,  olTenders  lly  Jusliee,  or 
Justice,  eannot  well  be  had  upon  sueh 
off.'Tiders  In  the  Provinces  tliat  enter- 
taitin  tlieiM,  IMlv,  to  prev<>nt  or  euro 
injuries  in  point  ot  Coninieree,  4tli,  (o 
consider  ot  ways  and  means  to  support 
tho  union  and  safety  of  theso  Provincea 


apainst  tho  publlek  enemies.  In 
wldeli  CoMgresse  tin)  Quotas  el  men 
and  charjics  will  bo  much  easier,  and 
more  eciually  sett,  then  it  Is  possible 
for  any  establishment  nuide  here  to 
do;  for  the  Provinces,  knowiiiK  their 
own  condition  and  ono  another's  can 
debate  that  matter  with  morefrei domo 
and  satisfaction  and  bettor  adjust  and 
ballauce  their  affairs  in  all  respects 
for  tlieir  eonimon  safety."  Preston's 
Doiuiiienls  Illustrutivo  of  American 
History,  p.  147. 

«Tliat  called  In  1711.  FrothlnR- 
ham's  Else  of  tho  Republic,  3d  ed., 
p.  110,  note. 

«  A  complete  list  of  those  hold  up 
to  1748  may  be  found  in  Frothini^ham's 
Rise  of  tho  Ri>publlo,  3d  ed.,  note  to 
pp.  lis,  11!).     See  also  ibid.,  p.  l.'iO. 

'  New  Hanipshlr(>,  Slassaehusetts, 
Rhode  Island,  Connecticut,  New  York, 
P(.'nnsylvania,  and  JIaryland. 


§■!•] 


I'liEVIOCS  ATTEMPTS  AT   IMON. 


IS 


two  ivpiesenttitives,  iiiul  none  more  tliiin  seven ;  tlie  represenbi- 
lioii  lietweeii  those  limits  to  be  njipoitioiied  in  iiecordiince  witli 
the  tiixiw  paid  by  tiie  constituencies.  Tiiey  might  raise  troops 
••vitii  ortieers  nominated  by  the  representatives  of  the  crown,  and 
foiitirmed  by  tiie  grand  council ;  but  could  not  impress  men  in 
any  colony  without  the  consent  of  the  legislature.  They  had  the 
further  power  to  make  laws  and  levy  "duties,  imposts,  or  taxes"; 
tiic  laws  to  1k'  not  repugnant  to  the  laws  of  Enghmd,  and  to  be 
subject  to  the  veto  of  tiie  King  in  council. 

The  scheme  was  rejec:ted  by  all  the  colonial  assemblies  to  which 
it  was  proiMWeil,  as  strengtlK-ning  too  highly  the  prerogative.  The 
Board  of  'I'riide  refused  ajiproval  because  it  was  too  demoemtic.' 

The  Stami)  Act  was  the  cause  of  the  iirst  actual  step  toward 
union.  vVt  tlie  summons  of  Massachusetts,"  an  "American  Con- 
gress," consisting  of  delegates  from  llie  pi)pular  assendilies  of  nine 
colonics,  met  at  New  York,  in  (Jctober,  ITtiiJ.'"  Six  of  the  colo- 
nies represented  adopted  a  declaration  of  rights,  and  drew  up 
jjctitions  to  King  and  I'arliament  wluch  compelled  the  repeal  of 
the  obnoxious  statute. 

Seven  years  later,  in  imitation  of  a  practice  of  Cromwell's 
army,"  conunittees  of  correspondence  were  formed  to  secure 
co-operation  between  the  diti'erent  parts  of  the  thirteen  coloniea, 
to  resist  the  aggressions  of  CJreat  Britain. '^ 


*  Fr(iUiiii,!,-luuii'H  Rlsoof  the  Ut'piil)- 
Uc,  ;)(!  (■(!.,  i.|i.  lit!,  117.  Curtis'  VAm- 
stitiilioiml    History    of    tho    llnitoil 

StlUl'H,     vol.     I,     p.     4,    IlOtO    1.       Slll)80- 

(incMitly,  lu  17SS,  Fniiiklin  Biiid  :  "Tlio 
(lilTi'ri'iit  ami  coiitnidictory  roasons  of 
(iislilio  to  my  plan  iiialin  nio  suKpcct 
lliat  It  wan  ri'iiliy  tho  Iriio  niedluni; 
ami  I  am  still  of  opinion  it  would  havo 
licen  happy  for  lioth  sidi's,  if  it  had 
boon  adopt .'d.  Tlie  I'olonii'S  so  united 
would  havo  hccu  Kidllciently  strong  to 
havo  di'frndcd  tliomsolvos;  thoro 
would  havo  hopn  no  need  of  troopa 
from  England ;  of  courso  tho  buIjso- 
ipiont  pri'toxl  for  taxing  Amcrioa, 
and  till)  liloody  eontost  it  occasioned, 
v.inild  have  Iiimmi  avoidod.  But  such 
mistakes  are  not  mw;  history  Is  full 


of  tho  errors  of  fltatee  and  princes." 
Life  of  Friinklin  by  Sparks,  vol.  1, 
p.  17s.  Tho  plan  is  republished  In 
Preston's  fioeumeiits  Illustrative  of 
Aiuerican  History,  pp.  17U-1S7. 

"  Tlio  resolution  was  moved  by 
.Tames  Otis  In  tho  Houso  of  Bepre- 
sontatlves. 

J"  Jlassaehusotts,  Ehodo  Island, 
Oiiuiectieiit,  Now  York,  New  Jersey, 
Pennsylvania,  Deliiware,  JIaryland, 
and  South  Carolina.  The  deletjates  ot 
Now  York,  South  Carolina,  ami  Con- 
noetleut  were  not  authorized  to  join  In 
tho  deelaratlon  and  petitions. 

n  See  LiHiurno's  advleo  to  tho 
army,  infra,  Appendix  to  this  thapter, 
[ia;,'t>  ril, 

i''  Tho  first  suggestion  reported  1» 


16 


rSTRODUCTIOK. 


[chap.  I. 


The  first  Continental  Congress  met  Sept.  5,  1774.  It  had 
been  recommended  by  Franklin  the  year  before.  In  April,  1774, 
members  of  the  Virginia  House  of  Burgesses,  after  tlieir  formal  dis- 
solution by  the  Governor,  had  organized  as  a  committee,  and  advised 
the  committees  of  correspondence  to  confer  as  to  the  exjiediency  of 
another  Congress.  Some  of  its  delegates  were  elected  by  populfir 
conventions ;  others  by  the  j)opuliir  houses  of  the  legislatures ; 
otlicrs  by  county  committees  ;  a  few  by  immediate  popular  vote.'' 
The  instructions  given  to  tlie  delegates  by  their  constituents  were 
various.  The  delegates  from  New  York  and  New  Jersey  were 
simply  instructed  "  to  represent "  those  colonies.  Tiie  instructions 
of  the  others  were  in  general  conlined  to  the  adoi)tion  of  such 
measures  as  miglit  extricate  the  colonies  from  their  present 
difficulties  and  obtain  tiio  repeal  of  the  obnoxious  acts  of  Parlia- 
ment. Tlie  delegates  of  South  Carolina  were  by  tiieir  instructions 
expressly  confined  to  agreeing  to  "legal  measures."'*     This  Con- 


thc  resolution  of  Samuel  Adnnis  at  a 
Boston  town  niocling,  in  November, 
1772,  for  the  appointment  of  such  a 
town  committee. 

I'  "Tlie  delcnatos  in  the  Congress 
of  1774  from  New  Hampslilre  wero 
appointed  by  a  Convention  of  D(>pulios 
chosen  by  llie  towns,  and  reeeived 
their  credentials  from  that  conven- 
tion. In  Itliodi!  Island  they  -vvern 
a|)poiiited  liy  (lie  General  Assembly 
and  ccmndssioned  l)y  the  governor. 
In  Connecticut  tliey  wero  appointed 
and  instructed  by  tlio  Oinnnittee  of 
<k)rrespondi'uee  for  tlic  Colony,  acting 
un<lcr  autliorily  conferred  liy  the 
House  of  llein-eseutalives.  In  New 
York  the  mode  of  appointment  was 
various.  In  the  City  and  Counly  of 
New  York  the  dch'gntes  W(-ro  elected 
by  poi)ular  vote  taken  in  seven  wards. 
Tlie  same  persons  were  also  appointed 
to  act  for  llie  counties  of  West 
Chester,  Albany  and  Ducliess,  by  the 
r  (spiH^tivo  committees  of  tliose  coun- 
ties; and  another  per.>ion  was  ap- 
|)oiuted  in  the  same  manner  f(U-  tiio 
county  of   Suffolk.    Tho    New   York 


delegates  received  no  other  iustruc- 
tions  than  those  implied  in  tho  corti- 
tlcates,  '  to  attend  tlie  Congress  and 
to  rejircscnt'  tin!  county  designated. 
In  New  Jersey  the  delegates  were 
appointed  by  the  ccunmittees  of  coun- 
ties, and  were  simpiy  instructed  'to 
represent  'the  colony.  In  Pennsylvania 
they  wore  appointed  and  instructed 
by  tlie  House  of  Assembly.  In  the 
counties  of  New  Castle,  Kent,  and 
Sussex-on-I)(>iaware  delegates  were 
elected  l).v  a  convention  of  tho  free- 
men asseml)led  in  pursuance  of  cir- 
cuiar  letters  from  the  Speaker  of  tho 
House  of  Assembly.  In  Maryland  the 
appointmi'nt  was  by  committees  of 
tlie  counties.  In  Virginia  it  was  by 
a  popular  convention  of  tho  whole 
colony.  In  .Soutli  Carolina  it  was  by 
the  House  of  Commons,  (tciu'gin  was 
not  represented  in  this  Congress." 
In  Massachusetts  t'ley  wero  appointed 
liy  the  House  of  llepresentatives. 
Curtis'  Constitutional  History  of  the 
Uldted  States,  vol.  i,  p.  H,  nolo  2. 
"  Journals,  i,  2-9. 


H-] 


PKEVIOUS  ATTEJII'TS  AT  UNION. 


17 


{jn.'ss  iuloptcd  a  declaration  of  rights  and  the  Xon-importation 
Association,  subscribed  by  each  member  on  Ijehalt  ol'  iiimself 
and  the  colony  which  he  represented;  and  then  dissolved,  after 
reconiniending  that  anotlier  congress  be  called  to  meet  at  Phila- 
delphia in  the  following  year.'^  'J'he  second  Continental  Con- 
gress assembled  at  rhiladeli)hia.  May  10,  177r).  The  delegates 
were  mostly  chosen  l)y  popular  conventions ;  Ijut  in  some  cases 
by  tlie  lower  houses  of  the  colonial  legislatures,  with  sul)se(iuent 
ratilications  by  conventions.'"  Some  credentials  granted  authority 
to  consent  and  agree  to  all  such  measures  as  tlic  Congress  should 
deem  necessary  and  effectual  to  obtain  a  redress  of  Anierii'an 
grievances.  Othei-s  were  more  moderate  in  tlu'ir  language. 
After  their  election  the  battle  of  Lexington  was  fought.  There- 
upon the  Congress,  with  the  consent  of  tlie  people,  assumed 
revolutionary  powei's,  which  were  limited  merely  by  their  ability 
to  cai-ry  them  into  effect.  The  lirst  resolution  of  the  lirst  Conti- 
nental Congress  was :  — 

"'riiiit  in  determining  (luostions  in  Congress,  cjioh  colony  or  province 
sliidl  have  one  vote  ;  the  Congress  not  being  possessed  of,  or  at  present 
ttl)l('  to  i)roeiu'o,  proper  materials  for  ascertaining  the  ini[)ortauce  of 
each  colony."  " 

Tlie  larger  States  were  never  able  to  procure  an  alteration  of 
this  rule. 

The  second  Continental  Congress  organized  an  army ;  issued  a 
continental  currency;  established  a  treasury  dcparlment  and  post- 
ollice ;  raised  a  navy ;  licensed  privateers ;  and  in  answer  to 
applicitions  from  the  people  of  four  colonies,'*'  advised  them  what 
forms  of  government  to  institute.  Tliey  also  gave  recommenda- 
tions to  the  jieople  of  the  respective  colonies  as  to  the  manner  in 
wiiii'li  they  sliould  treat  adherents  to  the  King;  and  adopted  the 
Declaration  of  Indeiiendence.'® 


"  Tills  liiis  liccii  consiiloi'i'il  till'  ))!>- 
plniiin;;  of  tlio  V'nioii.  Hili'.rctli's  His- 
torj'  of  llin  UnitiMl  Stall's,  vol  1,  p.  -lH  ; 
LiiK^dln'H  Inaugural.  Both  jiaiicrs  aro 
r<>iirlnlc'il  In  Troslou's  DoeumoutH,  pp. 
l'J2  '2()5. 

w  Curtis'  Coustitutloniil  Illetory 
of  tho  Unltod  Stales,  vol.  I.  p.  IS. 

"  Si'plcmbcr  ti,  1771.   Jownials,  vol, 


I,  I),  in.  Towlc's  History  and  .\nalysis 
ot  till'  ("oiistiliitiiin,  .'id  cd.,  ji.  4S. 

1"  Massachnsctls,  Ni'W  Hampshire, 
Vlriiiina  and  Hoiitli  Carolina. 

"  Si'o  Pcnliallow  v.  Doauo's  Admrs. 
.'}  Dallas,  Gt,  111.  Money  was  raised 
liy  loans  and  tho  ibsuo  of  tho  Cou- 
lluoutal  currency. 


1;s 


INTRODUCTIOX. 


[ciIAr.  I. 


The  luloption  of  ii  fonnal  instrument  of  iinion  wi.s  dcliiyod  bu- 
cause  of  the  refusal  of  some  of  the  eohjnies  to  surrender  their 
ehiiins  to  the  western  territory.  Finally  that  dillieulty  was  sur- 
mounted. The  jVrtieles  of  Confederation,  which  were  drawn  hy 
the  Continental  Congress,  were  ratified  by  Maryland,  the  last 
State  necessary  for  their  adoption,  on  March  1st,  1781. 

In  drafting  these,  the  Conuuittee  unwisely  rejected  the  sugges- 
tion of  oiganizing  an  annual  parliament  of  two  houses;-"  and 
"misled  i>artly  hy  the  rooted  distrust  for  which  the  motive  had 
ceased,  and  jiaitly  hy  erudition  which  studied  Hellenic  councils 
and  leagues  as  well  as  later  confederacies,  took  tor  its  pattern  the 
constitution  of  tlie  l'nitc<l  Provinces,  witli  one  house  and  no 
central  power  of  final  decision,"-'  as  luul  been  done  in  organizing 
the  Continental  Congress.  No  power  was  given  to  the  Confedera- 
tion to  levy  taxes,  contrilmtions  being  derived  from  requisitions 
upon  the  States,  which  could  not  be  compelleil  to  pay  them ;  or 
to  regulate  commerce,  intei'state  or  international ;  or  to  create 
courVH,  except  "for  th_  trial  of  piracies  and  felonies  committed  on 
the  high  seas,  and  for  deciding  appeals  in  all  cases  of  captures."^ 
The  most  imi)ortant  ijowcw  could  not  be  exercised  without  the 
assent  of  nine  States.  The  articles  could  not  he  amended  with- 
out the  asst'iit  of  all.  During  the  war.  the  patriotism  of  tlie 
people,  and  the  dcsjjotic  poweiw  granted  to  Washington  as  cnm- 
mandcr-iinliicl',  prevented  tliesc  defects  from  causing  the  ruin  of 
the  countrj-,  altliougii  tliey  greatly  prolonged  tln^  struggle  in  wliich 
(iireat  Britain  would  have  been  dcfcateil  earUer  liad  adecpiate 
powcre  been  vested  in  tlie  I'nitcd  Stat"s.  W  hen  pt'acc  was  re- 
stored and  j)rovision  was  necessary  to  pay  creditors  at  home  and 
abroad,  the  Confeileration  became  openly  contemptible. 

Coincident  with  liie  l)reak-down  of  the  Confederation,  the 
several  States  had  been  organized  under  the  advice  of  the  Conti- 
nental Congri.-is.  not  in  imitation  of  the  federal  body,  but  in 
governments  similar  to  tliose  which  had  jircvaik'd  in  tliem  w  hih', 
they  were  colonics,  and  analogous  to  that  t)f  (ireat  liritalii,  wiili 
tlie  legislatures  generally  dividc<l  into  two  houses,  and  the  tiirce 

'■™  TIiIh    hnd    1mm  ii     HiifJH''*<tf'il     by  ^i  niiiu'roft's  Formatlou  of  tin' Coii- 

.Tcisi'|il)  Iliiwlcy  cf  JIiissiuliMsclts   In  ^'tltllUllM,  p.  11. 
Xovi'iiilicr,    177'.     lianrnift's   Forma-  ^'■' ArtlcloH  of  Coufedoratlun,  IX. 

li'iii  ot  till' Ciiiistitutloii,  p.  11. 


§  "'•] 


I'lIKLIMIXAP.IKS  TO  THK  FEDERAL  CONVEXTIOX. 


19 


(lipiiit'.iu'nts,  the   executive,  tlie   legislative,   and   the   judiciary, 
iiidi'pL'udent  and  co-ordinate. 

The  call  of  the  Federal  Convention  was  the  result  of  a  meeting 
of  ((ininiissioners  from  Virginia  and  ^laryland  for  the  purpose  of 
iigrccing  upon  regulations  for  the  navigation  of  Chesapeake  Bay 
iuid  tiio  rivers  Potomac  and  Poeomoke,  who  visited  the  house  of 
Washington  in  March,  ITSS.'^ 

g  5.  PreliiiiiiiaricH  to  the  Federal  Convention. 

The  formal  initiative  of  the  Federal  Convention  was  the  ap- 
pointment of  connnissionei's  by  Virginia  and  Maryland  to  draw  a 
compact  for  the  regulation  of  trade  upon  the  Chesapeake  Bay 
and  the  Potomac  and  Poeomoke  rivci-s.  These  commissif)ncr8 
met  at  Alexandria  in  Marcl',  178o,  and  in  the  same  month  visited 
Mt.  Vernon,  where  they  agree<l,  after  consulting  with  Wivshing- 
ton,  to  recommend  a  meeting  of  commissionera  from  all  the  States 
to  make  arrangements,  with  the  consent  of  Congress,  for  the- 
regulation  of  commerce.  Virginia  callc<l  such  a  conference, 
and  five  .States  were  represented  at  Annaj)olis  in  Septem- 
ber, 178G.  New  Jei-sey  alone  had  authori/x'd  its  delegates  to 
consider  "  other  important  matters  "  besides  connnercial  regula- 
tions, whicii  miglit  be  ncccssaiy  to  the  conunon  interest  and 
Iiermanent  harmony.  A  report  was  made,  which  seems  to  have 
l)een  drawn  by  Hamilton.'  Jn  it  tiie  Connnissionei's  submitted 
their  opinion :  — 

"  That  the  idea  of  extending  the  powers  of  tlioir  deputies  to  other 
objects  than  those  of  commerce,  which  lias  been  adopted  by  the  stiite 
of  New  .lersey,  wiis  an  iiii|)roveinont  on  tlie  oriifjiial  j)lan,  (iiid  will 
deserve  to  be  incorijonited  into  lliat  of  ii  future  convention.  They  are 
the  more  naturally  led  to  tiiis  conclusion,  as,  in  the  course  of  their 
rellections  on  the  sul)ject,  they  have  been  induced  to  think  that  the 
jiower  of  roguhitiut;  trade  is  of  such  comprehensive  extent,  and  will 
enter  so  far  into  the  general  system  of  tlie  federal  goverunioiit,  that, 
to  give  it  ellh'uey.  and  to  obviate  questions  and  doubts  conccruiug  its 

*' Tlic  uiiKiiiiil  iiii'ctinn  wns  lii'lil  at  Lil'i^   of    Wasliinnton,    vol.   v,   \\    !K) ; 

Ali'xniiilriii,    hut,    tlio    i'()imiiinsii)Mi'rs  SpiiiUK,    vol.    i,    p.   '2S ;    Wiishiugtou's. 

visit. Ml  yu.  Vi-riKiii  \vlii>n>  llic  i>liiii  of  Writhij,'s,  Isl  .'d.,  vol.  ix,  riD'.l. 
the  iMi'i'liiiK  of  (■oiiiiiiisHi<iiii'i'H  fioiii  nil  §  .'i.  i  Ciirlls'  Constilutionnl  History 

tho  Stutos  wns  suggostcJ,     MarBhall'H  of  tlio  UuitoU  btftlcs,  \()1.  1,  |).  XH. 


20 


INTRODUCTION. 


[c!iA!'.  I. 


precise  nnture  and  limits,  may  require  a  correspondent  adjustment  of 
otiicr  parts  of  the  federal  system.  Tliat  there  are  important  defects  in 
the  system  of  the  federal  government,  ia  acknowledged  by  the  acts  of 
all  liujse  states  wliich  have  concurred  in  the  present  meeting;  that  the 
defects,  upon  a  closer  examination,  may  be  found  greater  and  more  num- 
erous tluui  even  these  acts  imply,  ia  at  least  so  far  probable,  from  the 
vmbarrassments  which  ciiaracterize  the  present  state  of  our  national 
aiTairs,  foreign  and  domestic,  as  may  reasonably  be  supposed  to  merit 
n  deliberate  and  candid  discussion,  in  some  mode  which  will  unite  the 
sentiments  and  councils  of  all  the  states.  In  the  choice  of  the  mode, 
your  commissioners  are  of  opinion  that  a  convention  of  deputies  from 
the  dilTerent  states,  for  the  special  and  sole  purpose  of  entering  into 
this  investigation,  and  digesting  a  plan  for  supplying  such  defects  as 
may  be  discovered  to  exist,  will  be  entitled  to  a  preference,  from 
considerations  which  will  occur  without  being  particularized.  Your 
connnissiouers  decline  an  enumeration  of  those  national  circumstances 
on  which  their  opinion  respecting  )li'  propriety  of  a  future  convention, 
with  more  enlarged  powers,  is  founded ;  as  it  would  be  a  useless 
intrusion  of  facts  and  observations,  most  of  which  have  been  frequently 
the  subject  of  public  discussion,  and  none  of  which  can  have  escaped 
the  penetration  of  those  to  whom  tiicy  would  in  this  instance  be 
addressed.  They  are,  however,  of  a  nature  so  serio'js,  as,  in  the  view 
of  your  commissioners,  to  render  tiie  situation  of  tiie  I'nited  States 
delicate  and  critical,  calling  for  the  exertion  of  the  united  virtue  and 
wisdom  of  fcU  the  members  of  the  confederacy.  Under  this  impression, 
your  comu)  isioners,  with  the  most  res|)ectfnl  deference,  beg  leave  to 
suggest  '.leir  unanimous  conviction,  that  it  may  essentially  tend  to 
advance  tlic  interests  of  tiie  rnion,  if  tlie  states,  by  whom  they  have 
been  respectively  delegated,  would  themselves  concur,  and  use  their 
endeavors  to  procure  the  concurrence  of  the  other  states,  in  the 
aiipointment  of  commissioners,  to  meet  at  Philadelphia  on  the  second 
^londay  in  Jlay  next,  to  take  into  consideration  the  situation  of  the 
Initod  States,  to  devise  such  fiu'ther  provisions  as  shall  appear  to  them 
necessary  to  render  the  constitution  of  the  federal  government  adequjite 
to  the  exigencies  of  the  I'niou;  and  to  report  such  an  act  for  that 
purpose  to  the  I'nited  States  in  Congress  assembled,  as,  when  agreed 
to  1)}'  them,  and  afterwards  cnnlirmed  by  the  legislatures  of  every 
state,  will  effectually  provide  for  the  same."^ 

February  21st,  1787,  Congress  adopted  the  following  resolu- 
tion:— 

»  Elliot's  Debutes,  2il  c<l.,  vol.  1,  pp.  117,  118. 


§''•] 


I'KELIMINAKIES  TO  THE  CC"     ENTION. 


21 


"  Wliercas  tliero  is  provision  in  the  Articles  of  Confederation  anil 
Perpetual  Union,  for  making  alterations  therein,  by  the  assent  of  a 
Confiress  of  the  United  States,  and  of  the  legislatures  of  the  scvoral 
slates ;  an<l  whereas  experience  hath  evinced  tliat  tlierc  are  defects  in 
the  present  Confederation  ;  as  a  means  to  remedy  which,  several  of  the 
states,  and  particularly  the  state  of  New  York,  by  express  instructions 
to  tiieir  delegates  in  Congress,  have  suggested  ti  convention  for  the 
purposes  expressed  in  the  following  resolution ;  and  such  convention 
ai)pearing  to  be  the  most  probable  mean  of  establishing  in  these  states 
a  lirni  national  government, — RchoIvpiI,  That,  in  the  opinion  of  Con- 
gress, it  is  expedient  that,  on  the  second  Monday  in  May  next,  a 
convention  of  delegates,  who  shall  have  been  appointed  by  tlie  several 
states,  be  held  at  Philadelphia,  for  the  sole  and  express  purpose  of  re- 
vising the  Articles  of  Confederation,  and  reporting  to  Congress  and 
the  several  legislatures  such  alterations  and  provisions  therein  as  shall, 
when  agreed  to  in  Congress,  and  confirmed  by  the  states,  render  the 
federal  Constitution  adecpiate  to  the  exigencies  of  government  and  the 
preservatioii  of  the  Union."" 

It  was  not  until  tiie  2itth  of  ^[iiy,  1787,  lliiit  a  niajority  of 
States  were  roprcseiited  at  Philadi'lpliia.  Tlio  Federal  ("oiiven- 
tiou  then  oi'gaiiizcd  and  elec'tcil  president  (ieorge  Washington. 
IJhode  Jslaiid  took  no  part  in  the  jn'oceediiigs;  hut  delegates,  ap- 
j)olnled  by  tlio  legislatures  of  tlie  otiier  twelve  States,  iinallyap- 
pciucd.  On  Septenihcr  17lli  the  ( 'onstiliition  was  comjilcted^  and 
was  signed  hy  less  tiian  tlirce-foiirtlis  of  tlie  delegates  whn  iittended, 
nianv  ol'  tlicsu  iloul)tin<'  its  wisdom  and  leaiino;  its  I'ailiiKi.  hut 
acci'pliiig  till'  sehenie  as  tlie  only  eliaiiee  of  escape  I'roin  aiiaicliy 
and  ilissoliitioii.  Tliu  delegates  with  most  iiithieueo  in  the  Con- 
vention were  James  Mailisou  of  X'irginia,  the  two  Piiickneys  of 
Sonili  Carolina,  Kiifiis  King  of  jMassauliusetts,  Roger  Siicrniau  of 
Connerticut,  Jami's  Wilson  of  Pennsylvania,  and  (loiivernenr 
Morris  of  tlie  last  named  State,  to  whose  pen  the  style  of  the  iii- 
stiin.ient  owes  its  symmetry  and  (larily/'  Ifainilton  and  Franklin 
would  have  preferred  different  forms  of  govi'niinent,  the  former 


•'  KlIioL's  Di'ljiiti'S,  2(1  oil.,  vol.  i,  p. 
fill. 

*  Tlio  plllll  (if    till'   pi-l'SCIll    ('(lllStilll- 

tloa  of  the  (lorniiiii  Kiiipire  was  dic- 
latod  \>y  liisniarek  <iM  llKMiftcriuiiiii  of 
Biv.  13lli,  1S71  (Vou  Sybol,  Die  Ui'griin- 


iluiitj  <l('s  Dculsi'licii  Eciclis,  Hiiiul  vi;. 
^  "'t'lic  iiislniniciit  was  writieii  lij- 
the  Ilii^jiTs  whh-h  writi'  this  h'lti'r." 
(JIi)niH  tip  ricUi'riiig,  Deceiulicr  '2'2, 
ISll,  Elliot's  Doliiitcs,  2(1  (Ml.,  vol.  v, 
11.  507.;) 


22 


INTRODUCTION. 


[CHAV.  I. 


one  more  aristocratic,  the  latter  more  of  a  democracy ;  but  Frank- 
lin rendered  great  service  in  promotintr  harmony  in  the  conven- 
tion, and  Hamilton  in  securing  tin-  suliscqucnt  ratification. 

Congress,  eleven  days  after  the  close  of  the  Convention,  without 
any  recommendation,  transmitted  the  doi'ument  to  the  State  legisla- 
tures for  submission  to  State  conventions."  On  June  21,  1788,  it 
"was  ratified  by  the  ninth  State,  New  Hampshire,  and  was  then  bind- 
ing upon  all  who  had  previously  acceded ;  bvit  it  did  not  go  into 
effect  until  the  assend)lage  of  the  first  Congress  at  Philadelphia 
on  :\Iarch  3,  1780.' 

8  «.  Oriffinality  of  the  AVork  of  tlie  Federal  Convention. 

It  was  well  said  by  (iladstone  that  "the  ^Vmcrican  Constitution 
is  the  most  wonderfid  Avork  ever  struck  off  at  a  given  time  by  the 
brain  and  purpose  of  man."  Sciolists  and  bookworms  have 
snccreil  at  the  phrase  as  overlooking  the  indebtedness  of  the 
Federal  Convention  to  the  teachings  of  history.  Hut  the  great 
statesman  of  our  own  time  well  appreciated  the  value  and  the 
character  of  the  work  of  the  statesmen  of  the  eighteenth  centurj'. 
Their  prodiu't  was  new,  if  anyfliingcan  be  new,  indess  we  destroy 
the  word  and  adopt  the  hyperboh!  of  Solomon.  The  result  was  as 
much  of  an  invention  as  were  the  first  cotton-gin  an<l  tcleplione. 
Dominated  though  thcj-  were,  like  all  men  in  every  human  action, 
by  forces  of  which  they  wei-e  ignorant,  they  labored  consciousl\-. 
Avoiding  dangci-s  which  history  and  experience  had  taught  thiMU 
to  foresee,  they  deliberately  selected  the  expedients  which  they 
found  had  jnoved  elfective  to  prevent  them.  They  departed 
radically  from  tlic  system  of  the  Confcdiration.  They  did  not 
follow  blindly  the  constitution  of  a  single  State.  Tliey  founded 
the  first  federal  republic  whieli  could  enact  and  enforce  its  laws 
directly  upon  its  indiviibial  citizens.  To  crown  all,  they  gave 
powers  to  courts  never  before  given  public  recognition,  which 
have  been  the  preservation  of  the  nation  as  well  as  of  the  form  of 
government,  and  which  will  cventuall}'  be  exercised  by  the 
tribunals  of  every  civili/ed  iieo|)le. 

They  were  men  of  few  books,  but  they  had  read  these  well. 

•  Sept.  28, 1787,  .Toiirnals  XII, pp.  140-  tory  of  tlio  United  States,  vol.  i,  p.  0:!J. 
100 ;  cited  by  Curtis,  Constitutional  His-  '  Owlngs  ».  Speed,  6  Wlieaton,  420. 


S<5-] 


ORIGINALITY  OF  CONSTITUTIOX. 


28 


The  oiil}'  theories  of  political  economy  with  which  their  (k  )ates 
show  familiarity  ^  were  a  few  exploded  maxims  of  Ilitme,^  (juoted 
in  the  Convention,  and  i)erliaps  a  single  reference  to  the  classifica- 
tion of  taxes  made  by  the  I''reneh  physiocrats.^ 

Their  stndy  of  ancient  history  seems  to  hr.ve  gone  little  beyond 
the  liives  of  Plutarch  and  a  few  compilations  made  during  the 
eighteenth   century.*     With  modern    ICnglish    history    most    had 


.5  fi.  1  Adam  Smith's  groat  work  011 
Th"  Wi'allli  of  Nations  was  piil)lislii"(l 
ill  177'!;  mill  an  Ami'iican  cililiou  in 
17;.!),  whU'lisix'alisof  lli('gn>at  dcmanil 
foitli(>  liook  in  till!  rnitcil  Slates;  l)nt, 
th.To  is  no  ri'fcii'nco  to  it  in  tin'  re- 
ports of  till!  (Icliates,  oven  in  t!ie  ills- 
etissioM  of  taxes  on  exports.  Tiiere  is 
a  ti'aililioii  tliat  Il.-imillon  read  and 
made  a  commentary  on  it,  in  17S3. 
(See  Ilistoiy  of  tlie  liepidillc  of  tin- 
Unit  ed  Sli\lesa:i1ra<'ed  in  t lie  Wrilin^s 
of  Alexander  Hamilton  and  his  Con- 
lemporaiies,  vol.  ii,  p.  514.)  Trof.  W. 
O.  Snnnior,  than  whom  no  oni!  sooms 
lietter  (lualifli'd  to  jinss  jndfjniont 
on  sneh  a  point,  was  satislled  from 
tlie  internal  evidence  of  llanulton's 
uiitiiiijs,  that  hn  never  read  Adam 
Siailh  (Sumner's  Life  of  llandilon, 
pp.  IDS,  1K|»|.  Acconling  to  Siimm'r, 
Law  and  Hume  are  tlic!  only  wiiti'rs 
on  political  economy  whom  Handlton 
(piolrs  to  ;iny  extent  (Hainillon'H 
Works,  Lodni''s  ed.,  vol.  i,  i>p.  70,  78, 
Vi,">Ci ;  vol.  vll,  pp.  S(!,  xm ;  v<d.  vii,  i>.  2  !.'>'. 
Henry  C.  Adams,  on  the  other  hand, 
in  hi- History  of  Taxation  in  the  United 
States,  p.  20,  <'xpressos  the  opinion 
that  Hamilton's  lli'port  on  Al.innfac- 
tnres  v.as  inspire<l  liy  Adam  Smith. 
Prof.  T'1,'0  IJ.iMieno,  in  I'rotezionisnio 
Ami'ricano.  and  K.  O.  Honrm-.  in  Quar- 
terly .loninal  of  Kcononucs,  \'ol.  viii,  p. 
32H,  havcf  collected  a  series  of  p.-irallol 
pnssai;es,  which  seem  (o  prov(>  (hat 
Ha  mi  II  on  consult  I'd  Tin'  Wealth  of  N.a- 
tloii:'.  when  ]iri'parint;  this  report. 

-  Tramillon,  in  tin' Co<ivention,  re- 
lern d  with  apiiroval  to  tho  fact  "  that 


one  of  the  ahlost  lioliticians  (Mr. 
Hume)  liad  jirononnced  all  that  inllu- 
once  on  the  side  of  the  crown  which 
went  nmlor  tho  name!  of  corruption,  an 
essential  jiart  of  the  wei;:;ht  which 
maintained  the  o(inililprium  of  tho 
Constitnlion."  (Madison  l'a))ors,  El- 
liot's Delial<'s,  2d  ed.,  V(d.  v,  p.  229.) 
This  wasoneof  his  favorite  (homes  (Sou 
Jefferson's  .Vna,  hooks  1  and  2,  vol.  i.x, 
1>.  !)li ;  .TelTerson  to  Williiim  Short,  Jan. 
H,  1K2.">,  ihid.,  vol.  vii,  ji.  :18;»).  He 
also  quoted  with  approval  tho  jiaradox 
tliat  a  national  <lolit  is  a  national 
blessing  (Hamillon  to  lloliert  Morris, 
Hnmilton's  Works,  2d  ed.,  vol.  iv,  p. 
124). 

^  It  seems  that  the  term  "iliroct 
taxes"  in  Article  I,  section  2,  wldch 
was  moved  hy  Gouvernenr  Morris, 
was  liorrowed  from  tho  writ  ings  of  tlio 
French  iihysiocrnls,  Turgot,  tiuesnay, 
and  DuponI  do  Nemours,  wilh  whom 
he  and  Franklin  at  least  wer(>  fandliar. 
See  Franklin's  Works,  vol.  viii,  p.  245; 
Dnnliar  on  The  DiriM^t  Tax  of  IHOl, 
II  (Juartorly  Journal  of  Ecouomics, 
11.  4:1(1 ;  and  tho  dlBCUSsion  of  Direct 
Taxes,  infra. 

*  "It  is  eloar  that  Hamilton  and 
Madison  Icmnvlianlly  anylhing  nioro 
of  (Irecian  history  than  whatthi'y  hart 
pi<'keil  up  from  tho  ohsorvations  of 
the  .Milie  Maiily  "  (Freennin's  History 
of  Fed(>ral  (tovernment  from  tho 
Foundalion  of  the  Achiran  League  to 
the  Disrnpdon  of  the  United  Slates, 
]..  IllIM.  Fii'oman  refers  to  Mahly'8 
Ohsorvations  s\ir  I'Histoiro  ile  (Jr''ee, 
which,  as  ho  shows,  displays  ignorance 


24 


INTKODUCTION. 


[CIIAIV 


siu'li  knowledge  as  is  contained  between  the  covers  of  lltniio  and 
(nth  nine  Macauhi}',  togetlier  with  the  tnulitious  of  the  conflict  he- 
twci'ii  the  Crown  and  Parliament  in  the  previons  century,  and  a  full 
a  ([iiaintaiicc  witli  contemporary  events  on  tlio  continent  of  Europe 
m  well  as  Great  Britain.  A  few  had  read  with  care  the  Parliaments 
ary  Ilistoiy,  besides  Locke  and  .some  writers  on  political  science  in 
tlie  cifrlitecnlh  century,  and  Wyse  and  Paine,  if  not  Kousseau, 
had  made  all  familiar  with  the  theory  of  the  social  contract.  But 
no  references  to  these  works  are  to  be  found  in  the  reports  of  the 
debates,  which  abound  in  illustrations  from  colonial  history.  One 
only  of  them  had  any  claim  to  the  title  of  civilian,  and  his  read- 
ing in  that  direction  seems  to  have  gone  little  beyond  the  works 
of  Kiuncs.  idtliough  perhajis  tlie  most  important  [ilirase  in  the  Con- 
stitution is  said  to  have  been  taken  by  him  from  tlie  civil  law." 
The  common  law  liail  l)cen  the  sidijcct  of  their  deei)est  study," 


(if  till"  struct  lire  of  that  fiuniiiis  IciiK'n'. 
A  mimbi'r  ot  the  ini'inlicrs  nf  t'lc  Vin\- 
vpiilion  \V('ri>  t;nu! nates  of  AmiTU'nn 
colh't^cs;  )nil  lit  that.  lim«  tlio  ciii'- 
riculiirii  (if  such  a  cdlh'^i'  w(Mit  little 
bcyoiKt  what  is  now  rofniiriMl  for 
adiiilssidii  to  the  fr(^sliniaii  class.  Two 
had  stmlicd  in  the  Scotch  universities', 
and  one  for  a  short  (iiM(Mit  Oxford  ;  but 
the  parades  of  finsslcal  loarniii},'  in  tlu^ 
debates  show  littlo  knowledjio  wliich 
was  not  derived  from  lIoniesi|ijieii. 
He(>X[aine,  Popular  ('.ov(rnnient,  |i.2(ll. 

'  .Tnd;,'e  Wilson,  v,ho  is  said  to  have 
siiijsjested  (he  words,  "  Inipair  tli(>  oli- 
linatiou  of  colli  rads."  Holmes'  Arj,'ii- 
menl  in  S;  iir;;es  r.  Crdwnin.-hicld, 
■!  Wheat, m,  122,  1.",!, 

'•  "In  no  ('(Miiitry,  perhaps,  in  liie 
"(irld,  is  tli(!  law  so  i;en(  ral  a  study. 
The  profession  itself  i.-;  imiiKirons  and 
Ijowerfiil,  mid  in  most  iirovinct^s  It 
l.ikes  the  had.  The  (,'reali'r  number 
of  this  (!c|nilies  sent  to  the  Ciiii^tress 
were  lawyers,  liut  all  who  read,  and 
most  do  read,  endeavor  to  obt.'iiii 
some  smatterinji  in  that  science.  1 
have  been  told  by  all  eminent  bool;- 
toUcr,  that  in  uo  brunch  of  his  busi- 


ness, after  tracts  of  popnliir  devotion, 
wire  so  many  books  as  Ihoso  on  llio 
law  exported  to  l!ie  plantations.  Tho 
colonists  have  now  fallen  into  tlio 
way  of  printing!  them  for  their  own 
use.  I  hear  that  they  have  sold  nearly 
us  many  of  Blacksloni>'sromiucn;.-uies 
ill  America  as  in  Kiit;iand.  (1  iKnil 
Gufje  niark.s  out  this  disposition  very 
ixirticularly  in  n  letter  now  on  your 
1,ilili\  He  slates  thill  all  the  pioplo 
in  his  government  are  lawyi  is  or 
sniatterers  in  law  —  and  that  in  Bos- 
ton they  have  been  (>ii;ible(l,  by  .suo- 
cessful  chicane,  wholly  to  evade  many 
parts  of  one  of  your  capital  ((i:i.4i- 
tiilioiiM." 

"Tills  study  renders  men  ariile,  in- 
(piisitive,  dexterous,  promjit  innttack, 
ready  in  defence,  full  of  recourses. 
In  other  countries  the  i);'o;,le,  more 
simple  and  of  a  less  inereiirial  east, 
judj;(!  of  ail  ill  piincipl,!  in  noverii- 
uient  only  by  an  iietual  ),'rlevauei'; 
Ikm-o  they  iinlicipali"  the  evil,  and 
jud^.i  of  the  pressure  of  the  K''.ev- 
aiice  by  tlie  badness  of  the  iirinciple. 
Tliey  aut;iir  mispivernment  at  a  dis- 
tance,   and    buuff    the    approach    of 


•] 


ORIOINAUTY  OF  COXSTITrTION. 


l)iiL  even  in  that  tiieir  books  were  few.  Ai'(;onliiig  to  Jolui 
Adams,  at  tliu  outbreak  of  the  revolution  there  was  but  one  copy 
of  the  Stati'  Trials  and  Schlen's  Tract  of  the  Judicature  of  Par- 
liament in  the  United  States." 

With  two  great  writer  of  their  own  time  they  were  thoroughly 
familiar.  The  lectures  of  Sir  William  Blackstono  t\-ert^  then 
recognized  as  an  authority  in  America  as  well  as  England ;  ^  and 
tiie  writings  of  ^lontescjuieu  were  not  only  cited  constantly  with 
respect,  but  studied  before  the  Convention  as  a  i)reparation  for 
its  great  work.* 

From  the  former,  they  had  learned  those  compacts  between  the 
Crown  anil  Commons  which  liad  proved  indispensable  to  British 
freedom.  ]5y  the  latter,  they  had  been  taught  the  cau.scs  of  the 
decay  of  other  nations ;  and  especially  the  theory  that  each  gov- 
ernment which  is  pca-manent  must  be  divided  into  three  distinct 
i;nd  independent  dej»artments,  the  legislative,  the  judiciary  and 
die  executive.'"     The  truth  of    this  had  been  deeply  impressed 


tymiiny  in  evory  taintiMl  lirnpzn." 
(i!iirki'',s  Spocch  on  Conciliation  with 
Aiin'rica,  Mai'cli  22,  177"),  Unrke's 
Vv'orks,  Am.  cd.,  vol.  il,  ii|i.  121,  125.) 

■  Thoso  vi'in  in  Boston.  Jolui 
.V.lnius'  Woik'i,  vol.  x,  pp.  238-2,'!!). 
I'l  17!K)  tlicro  vas  a  copy  of  an  Entjlihli 
iiiipcai'lnucnt.  ll'lai  at  Won  cstci',  ilas- 
SHcluisotls,  bnt  none  in  Kcw  llanip- 
shiro.  Fcr  .Tcioniiah  Smltli  was 
obliHod  lo  (liivn  thcn>  from  tins  latter 
Slate  in  (ndcr  to  linil  ii  form  from 
v.liicli  to  (Iniw  tlio  impciichrncnt  of 
.Tiii'i^jd  WooillMiry  Lant;(lon.  (Ijife  of 
.Icrcmiali  Smith,  p.  IIH.)  John  DicUin- 
wiujiticast  was  well  ivail  in  the  Par- 
liiinientary  History. 

*  Acconlinj!  to  HurUiv  there  were 
almost    ns    many    Knijlish    copies  of 


constantly  in  tlie  debates  nt  Philadel- 
phia and  till!  Stall)  Conventions,  as 
well  as  in  The  Fedenilist.  Washiii";- 
ton,  when  preparing  for  the  Conven- 
tion, studied  and  copied  with  his  ov.-n 
hand  an  abstract  madi"  fiir  him  ly 
Madison.  (Bancroft's  Formaiion  of 
the  Constitution,  p.  211.1 

w  "  In  every  form  of  government 
(Kn'nrcia)  there  ari>  three  depart mcnt't 
(liiijnn),  and  in  every  form  tie"  wi:-i> 
law-giver  must  consider,  v.iial,  in 
resjieet  to  each  of  tin  ae,  is  for  i;-; 
interest.  If  all  is  well  with  IheM',  v.W 
must  lU'eds  lie  well  with  ii,  a::'l  the 
differeni'cs  between  I'ornLs  nf  pivei:;- 
ment  are  differences  in  respeei  lo 
these.  Of  these  three,  one  is  the 
part  \\hi<di  deliberates  {-Ii  jiin'7.:v'iiiivm) 


]ilaeksl( 


ild 


the  United  Slati 


about   public   alTa 


tl 


le   second   is 


in  Knt,'land  (/mpra,    note  (i).      An       ttiati  which   has  to  do   with   the  of- 


meric:,n    edition    was    published    in       lice; 


A I 

I'hilailejphia  in  1771.     A  copy  bouf^lit       part  (riliiiv 

by  l{oi,'er  Sln'riiian   in  llie  same  vear       book  VI.  c 


d  the  third  is  the  judleiul 


")•' 


-Aristolh',  Poli 


is  now  in  the  lilirary  of  the  New  Vork 
Citv  Bar  Assoeial  ion. 


"Il  y   a 
series  de  pc 


iciue    Elat    Irois 


la] 


.  l,-!,'is. 


The  Spirit  of  tlie  Laws  was  cited      lative,   la    puissance    cxOcutrice    de» 


•26 


INTUODTTCTION. 


[CirAT. 


iijioii  tlii.'iii  l)y  tlio  imbecility  of  Congress  under  the  Artieks  of 
Confederiition. 

Tliey  liad  been  well  disciplined  by  tbat  severe  seliool-niistreMs, 
i'xpi'rienee.  In  tlie  iiriiiy,  some  Imd  been  tried  by  tlie  weakness 
of  llie  central  power  and  the  need  of  dancing  attendance  on  local 
legislatures  blinded  to  the  (!omnion  welfare  by  local  interests  and 
j)n'judii'es.  As  judges,  others  had  observed  the  injustice  and  im- 
pairment of  public  credit  fion  the  obstnu^tions  cast  by  Slate 
legislatures   in   tlie   way   of  foreign  and  domestic  creditoi-s.     In 


•ohosos  (|iil  ilr|)on(loiil  du  droit  ilos 
g(>iis,  <'t  la  imi.-is.incn  pxi'culrico  do 
-ccllpa  <iul  dipondi'iil  du  (Itoit  civil. 

"Pur  lii  ini'iiiiirc,  1«  priiico  on  lo 
miigislnit  fait  di'n  Inis  .  .  .  ct  corrigo 
on  ii1pI'i>j;i)  ciOli's  cpii  sunt  failcs.  Par 
III  ni'coiidc,  il  fail  la  paix  cm  la  nmnn-, 
<>nvoio  ou  rc'/iiit  den  anilHiHsadi's, 
tlalilio  la  Biiroti',  iircvicut  li's  inva- 
sions. Par  la  tr(>isii"'iiii>,  il  ininit  li's 
orimps,  on  jufjn  li's  dilTi  rciiccs  dcs 
particiiliors.  On  nii|)i>ll<'i-a  pi'tto  di'i- 
nii'TO  la  imissaiiro  du  jiiK<T,  ct  I'aiitrc 
8liniil<'ni("nt  la  puis.Hanco  cxi'culric(! 
dcVElal.  .  . 

"Lorsiiiic  dans  la  nicnic  ])orsoniic 
oil  dans  Ic  iiicnic  corjis  d<'  iiianistra- 
tui'c,  la  puissaiici'li'j^islativccsli'LMinic 
«l  la  jiiiissanrn  cxccutricc,  il  n'y  a 
point  do  libcrtv;  pan'o  qu'on  pout 
<'raiiidrc  (pio  lo  nn'mo  nionaniiio  on 
Ic  inriiic  sOnat  no  fass(>  dos  lois  tvran- 
iiiqiK'rt  pour  los  i'xi''<'iilor  tyranni(nic- 

llllMlt. 

"  II  n'y  a  point  cncoro  do  lihcrto  si 
la  puissance  di'jugorii'ost  pas  siparco 
<lo  la  imissanco  Icgislativo  ct  do 
roxooutrlci'.  Si  clio  I'toit  jointo  a  la 
puisKaiico  legislative,  lo  pouvoir  siir 
la  vio  ct  la  lllierto  dos  eitoycns  si'roit 
arl)ilrairc :  ear  Ic  jiigo  soroit  Ic^is- 
latcur.  Si  cllo  Otoit  jointo  a  la  piiis- 
saiioe  cxdcutrieo,  Ic  jugo  ponrroit 
avoir  la  forc<'  d'un  oppresseur. 

"Tout  soroit  perdu  si  lo  minio 
hnmmo,  ou  lo  nioino  eorjis  dos  prinei- 
paux,  ou  dos  uoblea,  ou  du   pcuplo, 


oxcr(;olcnt  dos  trols  pouvoira :  celni 
do  fairo  dos  lois,  colul  d'cxdcutcr  li's 
ivsolution.s  puliliqiica,  ct  celnl  do 
jiigor  les  eriiiH's  ou  les  diff'reiKls  dos 
l)arlieiiliers."  —  JIoMtosquien,  I/Es- 
])rit.  des  Lois,  livro  xi,  cli.  vi  (17IS\ 

"It  may  lie  oonlidentlj'  laid  down, 
that  ni'ithor  the  iiislitntion  of  a  Su- 
preiMo  Court,  nor  llie  entire  slrueturo 
of  tlie  Constitution  of  tlie  fnltod 
Slates  were  tlio  least  likely  to  occur 
to  anybody's  mind  b(>foro  the  pulilica- 
itoiiof  the  •  Esprit  dos  Lois.'  AVeliave 
already  olisorved  that  the  •  Foderaiist ' 
regards  the  opinions  of  Moiitos<|iiioii 
as  of  ))aramount  authority,  and  no 
opinion  liad  more  weight  wltli  its 
writers  tliaii  lliat  wliii'li  afllrniod  the 
ossontial  sejiaration  of  the  Exci-ulivc, 
Legislative,  and  Judicial  iiowers. 
Tlie  distinction  is  so  familiar  to  us, 
that  wo  find  it  hard  to  believe!  tlial 
even  the  different  nature  of  the  Exe- 
cutive and  Legislative  powers  was 
not  rooognizod  till  tho  fourteenth 
century;  it  occurs  in  the  DefiT.sor 
Pacis  of  tho  groat  Gliibolllno  jurist, 
Marsiiio  da  Padova  (1327),  with  many 
oIliiM'  curious  anticipations  of  modern 
political  ideas,  but  it  was  not  till  the 
oightooiitli  that  the  'Esprit  des  Lois' 
made  tho  analysis  of  the  various 
powers  of  the  State  part  of  the  ae- 
coptod  i)olitical  doctrine  of  tlio  civi- 
lized world."  —  Maine,  Pojuiiar  Gov- 
ornmont,  p.  21S,  cited  from  Thayor's 
Constitutional  Cases,  pp.  1,  2. 


§  v.] 


I'lidToTVI'KS  OK  CONSTITITION. 


27 


tlicsi^  legisliitiiros  ajj^aiii,  ninny  liiul  seen  tlie  strength  and  wcakneas 
(if  tlieir  organization,  and  the  necessity  of  some  bn-akwatera' 
against  siuhhni  floods  of  jiojmhir  jiassion. 

In  Congress,  they  liad  fi-lt  the  need  of  iniity  in  tlie  exeeiitive, 
and  tlie  iiowein  of  taxation  and  tlie  regnhitioii  of  eoiiinierce  in  tlie 
national  legislature.  Many  had  assisted  in  framing  the  consti- 
tutions of  their  resiiectivc  States,  and  hail  tested  the  strength 
and  weakness  of  the  work  they  had  thus  accomiilisheil.  All  these 
things  wei'(!  ever  liefor,'  them  in  their  eonelave.  And  if  they 
Imilded  better  than  they  ixOew,  they  worked  with  intelligent  I'ore- 
siglit. 

^  7.  I>r(>ti>t,v|»<-s  of  tlie  I'Vtloral  Coiistitiitioii. 

The  Constitution  of  the  I'nited  States  is  not  the  lirst  written 
constitution  of  a  nation,  although  it  is  the  iii-st  that  has  had  a 
jiroloiiged  and  sueeessful  duration.  Articles  of  confederation  in 
peace  and  war  between  different  states  were  the  natural  out- 
growth of  treaties  of  alliance  between  small  jiowers  niukr  constant 
(langei's  from  an  enemy  too  strong  for  any  one  of  them  alone. 
Such  was  the  Achaian  League,  mIucIi  lasted  in  (ireece  one  hundred 
and  thirty-four  j-eara,  from  the  reign  of  I'j-rrhus  to  the  proconsulate 
of  ;\Iuiiiniius.'  At  the  outbreak  of  the  Uevolntion,  such  con- 
fcdi'rations  draggeil  out  an  impotent  existence  in  Switzerland 
and  the  Netherlands.  I''roin  the  latter  fuian  of  league  were  copied 
many  of  tlu!  defects  in  the  instrument  which  (he  (  onstitutioii  di.s- 
placcd.-     Such  confederacies,  however,  were,  with  the  exception  of 

ij  7.  1  K.'(>Fr('(Mii;urs  Histdi-yiif  1''<"(1-  niiini;il  i):irliinii<'iit:<  <>t  two  limisos; 
<'riil  (liivcriiioiil,  j)(i.>t.sini,  I'sipcciiilly  pp.  the  (■Diimiilti'i'  fur  fiiiiiiinn  the  cou- 
'215,  iMl,  fill'  a  liLstory  of  the  rise  imd  tciU'i'iahm,  niisli'<l  piiiily  liy  thi'  iioli'd 
liill  iiml  an  iu'count  of  tilt)  Htnu'luro  of  diHtrusl  for  whirh  (he  motive  had 
lie'  .\i-h;iian  League.  censed  ,'iiid  partly  by  cruiiilioa  whieh 

-"111  Ihi'ir  llrs!,  foriiiiitivc  effort  .stiidii'il  llcllciiie  couiicils  and  h'a;,Mi('S 
thi'y  iiiissi'd  the  pl;iiii  road  of  Kiinlisli  as  well  lis  latereoiifedcraeies,  took  for 
and  .VmericHii  cxperieiici".  Tliey  had 
ri|,'hlly  liiMMi  jealous  of  ("xtiMidiiif;  Ihe 
siipii'iMiicy  of  Kiij;laii(l,  becansi'  it  was 
a  Koverniiu'iil  outside  of  thiMiiselves  ; 
tliry  now  applii'd  tlial  jealousy  (o 
one  another,  forKetliiij:  (hat  tlie  jjen- 
eral  power  would  be  in  their  own 
hands.     Joseph  Ha.wley  of  Massaeliu- 


l(s  palleiii  (hi-  t^)iistitu(io!i  of  the 
tlniled  I'rovinees,  wilh  one  house  and 
no  eeiitnil  powi'r  of  (liial  dei'isiou. 
Thes<>  I'vils  wi'ie  nearly  fatal  to  the 
t'nileill'rovinees1hi'inselvi's.;il!hout;li 
every  one  of  them  could  be  reached 
by  a  mcaseiifier  within  a  day's  jour- 
ney ;   and    hero  was  a  continent    of 


setts  had,  in  November,  177.'>,  advised      Slates  which  could  not  bo  consulted 


'2H 


ISTKODUCTION. 


[niAl*.  t. 


till'  Iliiiiseatic  Lciipfuc,  wliitli  wiis  iniiintiiined  for  commercial  pur- 
jiiiscs,  iniiiiily  if  not  solely  for  Uiu  puqwHe  of  defense,  or  in  sonio 
cisi's  of  offensive  war.  None  sought,  except  in  .,:>  far  as  tiit.'ir 
mutnal  relations  were  coneerneil,  to  restrain  the  powei-s  of  the 
sovereigns  of  wiiieh  they  were  composed.  Still  less  was  there 
any  restmint  upon  the  jjowers  of  the  whole.  The  idea  of  a  limi- 
tation upon  the  powei's  of  a  legislative  body  is  of  purely  Angh)- 
Saxon  origin.  Limitations  on  the  powera  of  the  Kings  of  England 
were  recognized  hy  the  connnon  law  and  in  certain  castas  were  re- 
peated and  enlarged  in  the  charters  which  thej-  granted  volun- 
tarily or  under  coinpulsiou.  Chartci-s  were  granted  diu'ing  the 
middle  ages  on  liie  continent  of  I'hiropo  as  well ;  and  in  Eng- 
land at  least  were  enfuned  l)y  the  courts  wheuev(!r  sporadic 
attcmjits  were  niaile  to  overstep  liicni.  In  Ihigland  limitations  of 
the  prerogative  were  inehidcd  in  tlie  coronation  oatli;  and  four 
kings  lost  their  ciown,  and  at  least  one  his  life,  after  proeeedinj^s 
judicial  in  their  nature  to  punish  its  violation.''    'I'lie  King  of  I'olaud 


wUlioiit  tlio  loss  (if  iMiuiy  months,  mid 
would  cvi'f  t<'iiil  to  iiMunliy  from  llu> 
■vviiiit  of  iiH''''"'""'"''  i"  tli''i''  si'|iiiniti> 
di'libcnitioMS." — Hinicrofl's  I'"oiiiiatioii 
of  till' Coiisliluliou,  pii.  10,  11. 

■' Thi^  nnicli'S  voted  liy  r.'irliiimciiL 
for  till'  (li'posllioM  of  Klwiird  II  iind 
Kii'liiird  II,  liolli  of  whom  wcrn  nftiM- 
\viirds  kiUc'd  in  pricn,  found  cacli 
guilty  of  th(!  viohitio  I  if  Ids  coronii- 
tion  o.'itli  (Howclls  iSl.'io  Trials,  vol.  i, 
t.|).  47,  117).  Thu  ■  Cimr^o  of  Illf^li 
TroiiKoii  and  ollici'  I{i>;li  Ciiiiirs  cx- 
hiliili  d  to  tin;  Hii^h  Coiirl  of  Justin' 
liy  .Toh'i  Cook,  Ksi|.,  Solicitor  (ipiioriil, 
iilp|ioi!it('d  liy  tlio  siiid  C'<iiii-1,  for  ami 
ill  lii'lialf  of  the  pi'opic  of  Kii^tlaiid, 
ii^;i'.in.-it  ('liiiilrs  Stuart  Kinji  of  Iji^- 
laiiil,"  upon  whii'li  Chailcs  I  was  lound 
Hui'ily  and  exocutcd,  chaiHi'd  him 
nnionsst  othor  thinits  with  viol.iiiiis' 
liin  coronation  oath  (Howell's  Slate; 
Trials,  V(d.  iv,  pp.  1070,  1119).  The 
resolution  of  tho  Convention  wliiih 
di'i'larod  the  abdication  of  .lames  II  in- 
cluded in  its  recital  of  the  grounds  for 


declaring  the  throne  vacant,  that  lie 
"endeavored  to  sulivert  the  con:-.tiHi- 
tloii  of  tills  kinjjdiuii  liy  hreakini,'  the 
orifjiniil  eonlriiet  between  kin;.;  and 
Iieopie."  (Maejiiilay's  History  of  Eii^'- 
laiid,  ch.  x  ;  Hallam's  Consiilutioiial 
History  of  Eii;,'laii(l,  ch.  xiv.|  Ciiaih'S 
and  .James  were  also  found  nuilly  of 
violiitinf;  "  tho  fundameidal  laws" 
(ibicl.).  Xo  previous  writer,  to  the  au- 
thor's  knowledge,  has  referred  to  (ho 
coronation  oath  ns  u  stepping-stono 
to  a  written  constitution. 

The  present  coronal  ion  o;ith  in  P'.ng- 
llilid  was  thus  established  by  the  Act 
of  1  William  and  Jlar." ,  c!i.  \i  :  - 

"The  archliii-liop  o:-  bi-ihop  shall 
say,  ^yilt  j/im  HoU'iimhi  jiriiniiyc  lunl 
Hii'fdr  lo  ijDVrfii  llir  piditli'  iif  liiin  hiiii)- 
ilarn  of  ICiujUiiiil  anil  Ihc  iloiniiiiims 
thrrclit  hcloiifjlii'i.  (irmntiinj  to  tlw  Hint' 
iili'H  ill  )>nrlhimrnl  lUjnrd  on,  ami  tin', 
hnvH  and  ciiMlumn  of  llir,  sumo  ?  Tho 
King  and  (Jueen  shall  say,  I  aoleimibj 
lininiise  no  lo  rfo.  Archbishop  or 
bisliop  :   ^\'ill  yuu  to  your  poicer  caiine 


V-] 


IMIOTOTYI'KS  OK  CONSTITITION. 


20 


lis  t'li'ctiou  Hworo  obedinneo  to  t]w  pacta  convcnta  undci'  tl 


ii|i(iii 

/r(ir  ituil  jiiMlirr  in  mercy  to  bf,  ejcecuird 
in  nil  ijdiir  jiuliimrnlH  ?  Kliin  imd 
Quci'ii :  I  wilt.  ArcliliiHliop  "!■  1iIh1i(i|i  : 
tVi7/  yi'ii  III  Ihr  ixlinl  of  i/oitr  jionrr 
mainliiin  the  tiiirn  iif  lliiil,  llic  trite  prn- 
feMsiiin  of  tlie  ijoxpel  inid  tlie  prnteMmit 
reformed  ritiijion  extiililinlieil  tiij  liiw? 
Ami  iritl  ijoii  proeiire  iiiiln  tlie  hi>ihopn 
mill  rterijii  of  tliin  reiilm,  iitnl  ti>  the 
ehiirelieH  rouiniilleil  to  their  rhiirgr,  all 
fiich  riijhln  mill  prii'ileijen  iih  tii/  litw  do 
or  fhiitl  iippertiiin  unto  them,  or  an;/  of 
tl.ein?  Kiuii  mill  Qin'cii :  All  thin  I 
promiHK  to  do.  Aflcr  tlilf,  the  Kill;; 
1111(1  QiiiM'ii  laying  IiIh  mid  liiT  liiiiicl 
upon  the  lioly  t;i)Hprls,  hIiiiU  Hiiy : 
Kiii^'  iiiiil  QiiiM'ii  ;  The  tliiiiii.i  lehirli  I 
hare  here  lief  ore  proiiiineil,  I  irill  per- 
form iindhep,  Hii help  me  Hod.  Tlicii  tin' 
Kiiij;  and  CJiicMi  mIihU  kiss  tin'  IkioU." 

At.  tlll>  Hllllll'    tillll"    till"  pi'l'SOIlH  I'OIl- 

(loriicil  imist.  iiIkii  iiiaki',  sulisorilji'  and 
ri'pral.  till"  fi)ll(nvlii);  di'claratioM  :  — 

"  I  A.  U.  do  Boii'iiinly  mid  r.lnccn'ly 
111  till'  lH'csi'Mcr  of  frod  profoHH,  ti"~tify 
and  drchiro,  That  I  do  bcliovi)  that  in 
tho  Ma<'rani<  lit  of  tlic  Lord'ii  mippcr 
there  is  not  any  IninsulislantialioTi  of 
tho  I'ii'iiicnts  of  lii-i'ad  and  wine  into 
thn  liody  and  lilood  of  Clirist  at  or 
iiflor  till"  coiisi-cration  lliri-i'of  by  any 
privioii  v.hatsoi'vi'r;  i'i)  And  llial  tlio 
invocation  or  adoration  of  llic  virgin 
>Iary  or  any  otliiu'  H.'iiiit,  und  tlio 
Hauriilri'  of  tlii>  inasw,  nt\  (licy  an;  now 
used  i!i  till'  cliiui'li  of  Home,  aro  hu- 
p.THiitio'.is  and  idolatroim.  (3)  And 
I  do  soli'iiinly  in  tlin  proscnco  of  Ood 
pmft'ss,  testify  und  dcchirc,  Tliat  I  do 
inaki'  this  dnlaration,  and  ovrry  part 
tliorcof,  in  tlio  plain  and  ordinary 
simso  of  the  words  read  unto  nii-,  as 
tlicyaroroinnioniy  nndrrstood  I ly  Eng- 
lish jirotcslanls,  without  any  I'vasion, 


ciiuivocation  or  mental  rrsiM-viition 
whatsocviM',  and  wlthonl  any  dispi'ii- 
Hatioii  already  granted  me  for  tli!-i 
purpose  liy  the  pope,  or  any  other 
authority  or  person  whatsoever,  or 
without  any  hope  of  any  siirh  di  -|ien- 
Kation  from  any  person  or  aulliorily 
wlLitKoe\er,  or  without  thinking  llint 
lam  or  can  lie  aeijuitted  before  (iod 
or  man,  or  nbmdved  of  tlii.i  d"i'lara- 
tion  or  any  Jiart  thereof,  altliou;.'h  the 
po]ie,  or  any  other  iiersoii  or  personi-, 
or  power  whatsoevor,  should  dispense 
with  or  annul  the  name,  or  dei  lare 
that  it  was  null  or  void  fiom  the  be- 
giniiiTij;."  (IJ  and  V.\  Win.  Ill,  ,  !,.  W; 
1  W.  and  jr.,  Ses.s.  II.,  ih.  ii;  ao  C.ir. 
II.,  <h.  I.)* 

The  old  form  of  the  eoronatlon  oath 
taken  by  .Tames  I  was  v.w  f.illows:  -- 

".Jiiramentiim,  Ue^ri-j  .laenbi  101)3. 
Arehlii..iliop :  Sir,  will  you  giant  und 
keep  mid  by  your  oath  eonfirm  to  your 
peojile  of  England  tho  laws  und  iMs- 
tonis  to  them  gninted  by  the  kingw  of 
England  your  htwful  and  religiouH 
predecessiors ;  and  namely  the  lawa, 
eiistoms  mid  frmicliii'.e^  rjranted  to  thn 
eiergy  and  to  t!ie  jieople  l>y  thn  glo- 
rious king  S;.  Khv.ird,  your  jirede- 
eessor,  aecoriling  and  eoarorinablii  to 
the  law.s  of  God  and  true  jirofe.-.sion 
of  the  gospel  eslubil.-i'.ieil  in  this  king- 
dom and  agreeing  to  tlie  prerogalivi's 
of  the  kingrt  tiiereof  and  to  the  Jineient 
customs  of  this  realm  '! 

King.  I  grant  and  promi.se  to  keej) 
them. 

A.  Will  you  kepj>  peace  n!id  agree- 
ment entirely  ac( ordiiig  to  your  power, 
both  to  God,  thn  holy  church,  tho 
clergy  mid  the  people  ? 

K.     I  will  keep  it. 

A.  AVill  you  to  your  power  eauso 
•  liy  n  Anno.  cli.  .S,  two  cl.insi's  wero  aildcil  which  iiromiso  that  tho  King  will  iii- 
viiiliihly  maintain  ami  iiroscrvo  tho  sottlomciit  of  the  true  Trotcstant  rolifjion  v.Mtli  tlio 
govornmont,  worship,  ilisciiilino,  ri;;lits  and  privilegps  of  tho  t'liurch  of  Seotlaml  a.s 
provioiisly  ostahUslii.l;  anil  tho  sotlloinont  of  tlio  (Miurch  of  England  and  tho  doo- 
triiio,  iTorship,  discii)!iiio,  anil  govornuiont  thereof  as  by  law  established. 


80 


INTKODUCTIOX. 


[CHAI'.  r. 


penalty  of  dethronement  for  tlieir  infringrenient.*  In  Scotland, 
(luring  the  wars  with  that  Mary  who  will  always  he  reniemhered 
as  the  Queen  of  Scots,  theologians  justified  rehellion  by  assigning 
breaches  of  the  promises  tlnis  made  at  the  coronation,  and  to  pnjve 
that  the  royal  authority  was  not  too  lofty  to  be  limited  by  contract, 
(pioted  from  the  texts  in  the  Book  of  Books,  where  Jcliovah 
repeatedly  bound  himself  by  a  covenant  Avith  Israel/' 
law,  ju8tii!0  ami  diserotion  in  inorcy      of  the  oath  tho  archbiHhdp  tiiniod  to 


mid  trill  h  to  bo  exccutod  in  rvll  your 
juU^nionts  ? 

K.     I  will. 

A.  Sir,  will  you  Rrnnt  to  hold  iind 
keep  .  'O  laws  and  ritthtfnl  customs 
wh'fh  the  c'oiiiinonnlly  ot  your  kiiit;- 
<loin  have,*  and  to  dofi'iid  and  npliolU 
llicin  to  the  honour  ot  Gjd  as  much 
as  in  ytui  lioth  ? 

K.     I  grant  and  proraiso  so  to  do. 

Soquitur  admonitio  episcoporuiu. 
Pie. 

Our  Uird  and  kiiif;,  wo  bospech  you 
to  prant  and  ])ii'S('rvp  unto  us  and 
every  one  of  us  and  the  ehurelies  eoin- 
niitted  to  our  charge  all  canonical 
privileges  and  due  law  and  justici', 
and  that  you  would  luoteet  ami  defend 
us  as  every  good  king  in  his  kingdom 
ought  to  bo  a  protector  and  ilefender 
of  the  bishops  and  diurches  under 
thi'ir  government. 

K.  With  a  willing  and  devout 
heart  I  jiromiso  and  grant  that  I  will 
pri'serve  and  maiiilain  to  you  and 
every  of  you  and  the  duirches  com- 
mitted to  your  iharge  all  canonical 
privileges  and  due  law  and  justice, 
and  that  I  will  be  your  protector  and 
(b'fender  lo  my  power  tiy  the  assist- 
ance of  (iod  as  every  good  king  in  liis 
kingilom  ought  to  protect  and  defend 
the  bisliops  and  churches  under  their 
governnient."  (I'ro*  hero's  Select  Stat- 
utes and  Documents,  pp.  .Ifll,  392.) 
Ani'iently,  at  least,  on  the  comlusion 


the  crowd  an<l  asked  four  time.",  "  Do 
you  consent  to  havi?  (his  man  to  bo 
your  Mng?";  a  clear  proof  that  tho 
right  to  the  crown  originally  dc)iended 
on  the  choice  of  the  people,  wliicli 
was  used  as  an  argument  in  favor  of 
tho  execution  of  Charles  and  the  de- 
thronement of  James.  (Milton,  De- 
fence of  tho  People  of  Englaml,  In 
Answer  to  Salniasius  for  tho  King, 
Milton's  Works,  rickering's  ed.,  vol. 
viii,  p.  189,  and  jxutKim.  See  also, 
Eikonoklastes,  ibid.,  vol.  ill,  p.  382; 
Burnet's  History  of  his  Own  Time,  2d 
ed..  Book  IV,  vol.  ill,  i>.  378.) 

Charles  I  justiUed  his  refusal  to 
sign  till'  act  aljolishing  lii.-liops,  and 
George  III  his  refusal  to  agree  to 
catliolic  emancipation,  upon  tho 
ground  that  such  assents  would  be 
violations  of  their  respecllve  corona- 
tion oaths.  (See  Eikon  Basilike; 
Eikonoklastes,  Milton's  Works,  Pick- 
ering's eil.,  vol.  ili,  p.  403;  Di'feuco 
of  the  People'  of  England,  in  Answer 
to  .Salniasius,  ibid.,  V(d.  viii,  jip.  21G, 
2J.7.  (Cam|.<>eirs  Eives  of  the  Chan- 
cellors, 1st  I'd.,  vol.  iv,  p.  101 ;  vul.  \  ii, 
p.  CiTli. ) 

■*  See  Adams,  Di'fcnce  of  American 
Constitutions,  3d  ed.,  vid.  1,  ]).  7!). 

'  The  Iliseof  Modern  Democracy  in 
New  England,  by  Charles  Borgeaud  ot 
the  University  of  Geneva,  Switzerland, 
p.  78.  This  Is  a  book  of  great  value 
and  originality. 


•  In  snm«  enrlicr  oiitli.s"OHiM  yiitr/ns  fleffcrit ,"  wliicli  it  translalMilby  Milton,  "  tli.it 
the  ceiniiion  iMMiplK,  tlii.t  is,  tlic  Ilousu  ot  ('(iiiiiiions,  slniuld  rlioosc,''  ( I  >,'fi':icc)  of  tlio 
I'lKiplo  lit  Knulaiiil  in  An.swer  to  Siiimu.siu.s  for  tlio  li.iiii{.  Milteu's  Works,  Pickering'* 
ej.,  vol.  viii.  |i.  '^4". 


§'•] 


PROTOTYPES   OF   CONSTITUTION. 


81 


riiu  power  of  the  courts  to  enforce  the  limitations  upon  the 
jirurofifiitive  of  the  crown  was  therefore  a  conception  familiar  to 
tlie  minds  of  American  lawyers  long  before  the  J{evolution.  The 
power  of  the  courts  to  enforce  limitations  upon  tlie  power  of 
a  national  legislature  was  not  yet  recognized.  Blackstone  had 
familiarized  tliem  with  the  doctrine  of  the  omnipotence  fif  Par- 
liament. The  maxim  that  it  could  do  everything  except  make 
a  man  a  woman,  and  a  woman  a  man,  was  as  trite  a  quotation 
tlu'u  lis  now.  Yet  successive  steps  in  luiman  progress  liad  not 
only  sliov  i  tlie  necessity  hut  suggested  tlie  practicahility  of  such 
a  j)ractiee.  Under  tlie  'I'uihirs  and  Stuarts  tlie  doctrine  of  the 
divine  right  of  kings  was  not  oidy  preached  from  the  pulpits  but 
argiie(l  at  tlic  bar.  Thi'  crown  hiwyei's  contended  that  Parliament 
could  not,  even  witii  the  consent  of  tlie  king,  shear  the  crown  of 
its  essential  prerogatives.''  The  king  had  no  power  to  thus  de- 
prive his  successors  of  their  birthrights,  lie  had  not  even  the 
right  to  himself  abandon  a  trust  repcjscd  in  him  by  (Jod.  These 
claims  of  the  prerogative  of  the  crown  were  among  the  sources  of 
the  idea  of  a  prerogative  of  the  [leople.' 

Although  no  court  was  so  bold  as  to  set  aside  an  act  of  Parlia- 
ment, we  liiid  a  few  judicial  sayings  that  an  act  of  Parliament 
against  conuiiou  right  would  be  void;**  and  ecclesiastical  courts 
where  ihe  supremacy  of  the  pope  was  recognized  had  held  statutes 
void  which  infrinjieil  the  liberties  of  the  church.''*     In  the  eonllict 


'•  ThiH  was cxiircusly  (lo('i<ii>(I  in  Goil- 
iliMi  r.  Hull's,  '2  SliowcM',  iliy;  S.  C. 
as  (liiihviii  I',  lliilcs,  Oiiiil)i'i'ljiH'li,  p. 
•Jl;  Hnwi'U's  Stiit(<  Triiils,  vol.  xl,  p. 
Ulil'i,  wlicrii  llii>  iirniiiiii'iits  aro  sol 
fdilh  111  Icnutli;  H  I!:ici)m's  AhriilKi,'- 
iiii'ul,  pp.  70-71).  IJiil  llio  derision, 
which  HiislaiiuMl  lh(!  powi-r  <if  tin'  Kitij; 
to  (lispiMis((  Willi  llio  pc'ual  statuli'S 
anainsl  lioiiian  (.'atliolics,  was  oni'  of 
tho  caiiBcs  of  llii)  llinolulion  of  KiSS. 
(Macaulay's  His'ory,  rli.  vl.  Sim?  also 
Lord  li.'U'oii's  Maxims,  Kog.  11);  Year 
Book,  i  Ili'iii-y  VII,  p.  (1.) 

■  SiMi  .Tohn  Lilliiirm''«  trai'l.  The 
IVopli's  I'lcroKalivi',  A.D.  ll!47-S; 
(.'itc'd  by  l!ui'g(.'uud,  'i'hu  Ititiu  ul  Mod- 


ern Democracy  in  OKI  and  New  Eng- 
lan<l,  p.  H',1. 

*  Lord  Coke,  ill  Doctor  lionlmm's 
('asi>,  8  Ki'p.  lis,  and  cilalions  there 
set  fortli.  Lord  Iloll,  in  JIayor  and 
Commonalty  of  London  v.  Wood,  12 
llodi.rn  Keports,  ^.(ill,  (!K7. 

'■'  III  Kits  tiie  Court  of  tii<>  Uota  llo- 
maiia  refused  to  reeotjnize  a  statute  of 
the  Repiiblie  of  Genoa  whicli  forbade 
a  Genoese  Bubjoet  from  niakinR  an 
ecclesiastic  his  exocntcw;  '•Innqititm 
contra  tihertatem  fcclrninnticnm  fM 
nullum  ijiHo  fiuio  rl  Jure  rx  th'fictn  po- 
li;sfiitin  liiirornm  HUilulctilium"  (Coxe, 
Judicial  Power  and  UnconstituUonal 
Legii^laliou,  pp.  I'iD-l'iS),    Tlio  famous 


32 


INTRODUCTION. 


[chap.  I. 


with  George  III,  the  colonists  turned  the  old  weapons  of  royalty 
against  its  wishes.  The  government  of  the  colonies  had  always 
been  treated  as  a  jiart  of  the  oi-own's  prerogative  with  which 
Parliament  did  not  interfere,  excei)t  in  so  far  as  the  regulation  of 
comm  'Pce  was  concerned.  Tlie  colonial  lawyers  claimed  fcliat  the 
Sta;H[)  Act  was  not  binding,  as  an  iiifriugcmcnt  of  tlie  prerogative; 
while  they  stirred  up  the  people  with  the  cry  tluit  taxation  vnth- 
oiit  representation  was  tyranny."^ 

Tin;  colonists  were  accustomed  to  having  the  statutes  ju'  ■  ■:'<\ 
ihcir  legislatures  set  aside  as  in  conflii't  witli  a  fundament,  i  L  \, . 
Their  legislative  powers  were  limited  by  their  charters,  which,  like 
those  of  nuiiiicii)al  or  private  corporations,  ]icnuitted  no  legislation 
in  conflict  with  tlie  principles  of  the  couuuon  law.  Bills  which 
they  passed  affecting  private  riglits  as  well  as  tie  crown's  pre- 
rogative were  always  subject  to  the  disap[):.)val  of  the  Privy 
Council,  wliich  usually  acted  in  accordance  M-itli  opinions  grounded 
upon  legal  precedents  written  bj'  the  law-oflicers  of  the  crown.'* 


<'oiitrovi>r>sy  Imtwccii  Henry  II  nnd 
TlK)ni!i8  a  UcfUol  aroMO  from  the  ic- 
fuKiil  liy  Uio  Archliisluip  to  obey  Uio 
Constitutkiiis  of  Cliircndon,  wliicli, 
ninoM.^stotliorttiini;;-,  took  iiwny  licuo- 
tlt  of  tlio  clin'j^y  in  ci-iiuiiml  ciir.ow,  anil 
wliicU  woro  soliMniily  auiiullcil  liy  him 
ill  hiri  ca]iac-ity  a'l  an  ocelosiaiUical 
jiiil^;.!  ii[iou  cci-laiii  cxcommuiiica- 
tioii!4.  Atlor  Bockct's  dciitli,  tin-  King 
wiv.;  iit\a)]le  to  nialco  jii'aco  witli  tlio 
Vopo  until  lio  liail  n'nounccd  tlio  ob- 
noxious Ktatii("H  (iliid.,  PI).  1M7  i:i!t). 

'"  A  lar^!(!  nuniljci-  of  illustrations  of 
those  arftiiiucnts,  whou  first  used 
ag"hi.«L  till)  validity  of  tho  writs  of 
aspi-.lanco  to  aid  lii  the  search  for 
I3nui;^(;led  K'^'xls  may  1)0  found  in  Mr. 
Jusi  ice  Gray's  notes  to  Quiiicy's  Rc- 
)ioris,  pnn/tim.  According  lo  a  leUer 
of  Cliii'f  Juslice  nulcliinson  of  Mas.^a- 
<;huH0tt8,  Feb.  2(1,  r/Cifi,  "tlie  chii  f 
justice  of  Uliod(>  Islaiid  suiposes  no 
Jict  of  rarllamenl.  can  coiitroni  a  law 
of  that  colony  "  (ibid.,  ii.  44:i).  In  the 
sumo  year  John  Adams  wrote  to  Ciisli- 


inp,  Ills  nssoilale  on  tlio  bench  of 
Jlassachusetl.j :  "You  have  my  hearty 
concurrenco  in  tellinj;  tho  jury  the 
nullity  of  acts  of  riuiiament"  (Ibid.). 
Ill  ICi'.!,  Govcrmu'  L  '\-erott  of  Massa- 
chusetts claimed  that  tlio  King  and 
rarlianicMit  could  enlarge,  l)Ut  could 
not  reslrlct  their  charier  rights 
(Brooks  Adams,  Eniaie'lpalion  of  Mas- 
Hachusells,  ]i.  21)0,  ciliiig  Randolph's 
Narrative,  Hufc'li.  Coll.,  Prince  Soc. 
ed.,  vol.  i,  ].  'l:l|.  In  1708  or  1709 
(Tovenior  CraiiJ-lon  of  Rhode  Island 
formally  superseded  the  execution  of 
the  ail  of  Parliament,  G  Ann,  ch.  .30, 
alTectiiig  tlie  curreni'y  (Chalmeis,  In- 
troduction to  the  History  of  t  lie  Revolt 
1)1  the  American  Cohuiies,  liook  VII, 
ch.  i). 

"  Acollectlonofth(>se  may  be  found 
in  Chalmers'  Opinions  of  Lawyers. 
In  the  celebraled  lase  of  Winlhrop  r. 
Lechmere.  A.l).  1727  (Public  Recon,',- 
of  Connect  lent,  vol.  vli,  pp.  C71-G70); 
Thayer,  Constitutional  Crises,  vol.  1, 
pp.  1)1  35);  Coxe,  .fudiciii'  Power  and 


■^ 
'.,,* 


§7.] 


rilOTOTVl>E8   OF  CONSTITUTION. 


88 


From  the  agrrements  of  the  Englisli  gxiilds  were  copied 
the  agreements  under  which  were  formed  tlie  independent  Con- 
gregational thuruhes.'^  These  again  suggested  the  covenant 
made  on  the  Mayflower  when  a  deviation  of  the  voyage  brought 
the  vessel  toward  a  point  without  the  boundaries  covered  by  the 
Virginia  charter  and  made  a  few  restless  spirits  claim  that  each 
would  have  the  right  to  be  a  law  unto  himself.'"  This  was  the 
first  written  constitution  framed  by  and  for  themselves  by  the 
people  of  a  communitj'.  Ten  j-ears  later  the  Constitution  of 
the  colony  of  Connecticut  was  a<lopted  by  the  inhabitants  of  the 
tlu-eo  towns  of  Windsor,  Hartford  and  Wethersfield  in  eleven 
orders.^' 


Uiu'onstitutionnl  Lrglslation,  Appon- 
(lix,  i)p.  370-382),  tho  riivy  Council 
li(!l(l  ii  ((iloninl  statute  of  Connecticut 
"null  Jiinl  void,  being  conirary  to  tlio 
laww  (if  En^;lun(l  in  regard  it  ninkea 
lauds  of  inheritanco  distributalilo  as 
personal  estates,  and  Is  not  warranted 
liy  llie  charter  of  tliat  colony."  The 
Privy  Council  afterwards  reversed  this 
decision  in  Clarlt  r.  Tousey  (lirooks 
Adams,  Einauoipation  of  Massachu- 
S"LtH,  p.  301). 

'■  Borgeaud's  Rise  of  Modern  D(>- 
i:  'X'raey  In  Old  and  New  England,  pp. 

'■y;,  13H. 

"The  JUyfloweu  Compact.  — 
'  In  the  name  of  G<>d,  Amen  ;  We, 
.c.::ie  names  aro  underwritten,  the 
.  ,, .  ii  sulijects  of  our  dread  Bov(>ralgno 
Kin;!  .lames,  by  tho  grace  of  God,  of 
(treat  Uritalne,  Prance,  and  Ireland 
King,  <1.  fcMdiM-,  of  tho  faith,  etc., 
Imveing  1.,,  i.ilaken,  for  the  gh)rie  of 
(iod,  unci  advnnceinente  of  tlie  Clirls- 
tiiin  faith  and  honor  of  our  king  and 
countrie,  a  \(iyage  to  plant  the  llrsl 
ciiloide  In  tlie  Northerne  |iarls  of  Vir- 
ginia, do(>,  by  these  presents,  soleinidy 
and  nnilnally,  in  tin!  ))resenee  of  God, 
and  one  of  another,  covenant  and 
c  iirbino  ourselves  toRothor  Into  a 
eiviU  body  iMjlitlck,  for  our  belter 
ordering  and  proservaliou  and  further- 


ance of  tho  ends  aforesaid;  and,  by 
vertue  hear  ',  to  enacte,  constitute, 
and  frame,  sucli  just  and  equall  laws, 
ordenances,  acts,  constitutions  and 
offlces,  from  time  to  time,  as  shall  be 
thought  most  meeto  and  convenient 
for  t'le  gen,'rall  good  of  the  Colonic. 
Unto  tvliu'h  wo  promise  all  due  sub- 
mission and  obedience.  In  witues 
whereof  we  liavi-  hereunder  subscribed 
our  namco,  at  Cap  Codd,  tho  11th.  of 
November,  In  the  year  of  the  raigno  of 
our  Hovorelgno  h)rd.  King  James,  of 
England,  France,  and  Ireland  tho 
eighteenth,  and  of  Scotland  tho  fifty- 
fourth,  AnnoDondnl,  l(i'20."  Preston's 
Documents  Illustrative  of  American 
History,  pp.  30,  31.  A  similar  agroo- 
ment  was  made  by  settlers  of  Rhode 
Island  about  1037.  (Arnold,  History  of 
Rhodfl  Island,  vol.  I,  pp.  lO.l,  lOH.)  An 
agreement  In  Imitation  of  tlie  May- 
Mower  Contract,  executed  by  the  early 
settl<-rs  of  Ohio,  In  1802  Is  doscrlbi>d 
In  The  Green  Bag,  vol.  vll,  [).  112. 
Much  'nvaluable  learning  on  the  con- 
stitutional and  Institutional  history  of 
tho  different,  iStates  may  bo  foinid  In 
tho  hlstorli'H  of  the  different  State 
courts  publlsheil  In  that  periodical. 
'  "  January  14,  1038.  The  preamble 
Is:  — 

"  Forasmuch  as  it  hath  pleased  the 


84 


IN'TllODLX'TIOX. 


[CIIAr.  I. 


The  genius  of  Joliii  Lilburne  took  these  proceedings  for  ex- 
amples when,  in  1G48,  to  free  England  from  the  oppression  of  tlio 
Long  Parliament  lie  helped  frame,  and  persuaded  the  army  to 
supnort  the  Agreement  of  the  People. 

le  first  scheme  of  a  written  constitution  for  a  nation  was  the 
V  :  of  an  English  clothier  and  soap-hoiler.  The  same  man  was 
the  first  who  argued  successfully  in  a  court  of  justice,  that  a  statute 
passed  hy  a  supreme  legislature  was  void,  because  inconsistent 
with  the  fundamental  laws.^''     It  is  strange  that   the   name  of 

Allmlglity  (iod  liy  tin-  wixo  disposition 
of  his  (liiiyiu;  [iniidoncn  so  to  Order 
and  dispose  of  tliiuj^s  tliat,  wo  tlio 
Iidmlfitnnts  and  Ki'sicicnts  of  Windsor, 
Hartpford  and  Wotlicrslicid  arn  now 
oohaljiting  and  dwcilinK  in  and  vppon 
tlio  River  of  Coneetoeolto  and  the 
lands  thereiiiilo  adioynolng;  And  well 
knowiiiR  when  a  pcopli'  are  gathered 
logatlii.'r  llie  wordofCrod  r<Mpurestliat 
to  niayutayne  tlie  peace  and  \inion  of 
sueli  a  people  there  slionid  li<>  an 
orUerly  and  di'cent  (roui'mieiit  (>stal)- 
lished  aeeiuding  to  Ood,  to  order 
and  disi)0»e  of  the  affiiyres  of  tlio 
pooplo  at  all  seasons  as  ocealion  shall 
require;  doe  tlierefort-  assollate  and 
eonloyne  our  s(>lu<'S  to  lie  as  ono 
rubiike  state  or  ('onion wealth;  and 
doe,  for  our  seines  and  our  successors 
and  sucli  as  sliail  be  a<lioyned  to  us 
att  any  tynie  hereafter,  enter  into 
Coinliinalion  and  Confederation  lo- 
gallier,  to  niaynlayne  and  presearue 
the  lilierty  and  purity  of  tli(>  gospell 
of  our  Ijord  .Tcsus  wcli  we  now  prfesse, 
as  also  llie  disciplyne  of  tlie  Cliurelies, 
well  accordinK  to  llic'  triilii  of  tlie  said 
gospeil  is  now  piactised  amongst  vs; 
As  also  in  or  Ciiieil  A. 'aires  to  b(! 
guided  and  goueiiied  according  to 
such  Lawes,  Kulcs,  Orders an<l  decrees 
as  shall  be  inadi',  ordered  &  decreed, 
as  followeth  :  "    - 

Of  this,  Jndge  Simeon  K.  Baldwin 
says  in  his  essay  on  the  Three  C"on- 
siltutituis  of    Coiini'cticut,    Papius  of 


New  Haven  Colony  Iliatorlcal  Society, 
V(d.  V,  p.  180: 

"Historians  concede  that  the  (irsl 
written  constitution  of  rciiresentativo 
government,  ordained  by  men,  was 
agreed  on  by  llu!  inhabitants  of  tho 
three  towns  of  'Windsor,  Hartford 
and  'Wethersdeld,  2r)()  years  ago.  There 
had  been  before,  agrecnii'nts  for  tho 
future  orgaidzation  of  a  body  politie, 
like  that  signed  on  board  of  tlie  Maj-- 
llower,  in  Piyinontli  Bay;  tlicre  had 
been  constitutional  forms  in  tlie  old 
worlil,  rising  gradually  and  succes- 
sively into  life  :  tii(>re  had  been  specu- 
lative plans  for  Utopian  re|i\ib!ies, 
framed  by  iihilosophers;  but  never 
had  a  company  of  men  deliberately 
met  to  frame  ii  social  compact,  con- 
stituting a  new  and  lndepend<'nt 
comnionwcallh,  with  dellnit(MilTicers, 
executive  and  legislative,  and  pre- 
scribed rules  and  modes  of  govern- 
ment, uidii  the  first  jilanlers  of  Con- 
ueelicnt  canu'  togedier  for  their  great 
work  on  January  Itlh,  lI'iSH  0." 

Howell's  Slate  Trials,  vol.  v,  pp. 
■tl.'l-444.     See  infra,  Appcndi.x,  p.  .">',). 

"■  Tlie  claim  that  tlii'rc  wi'ie  cer- 
tain "fundamental  laws"  of  Eng- 
land, which  had  jiecnliar  s.mclity 
and  could  not  be  abrogated  w.is  <oii- 
stautly  set  up  during  the  innllii't 
with  Charles  I,  as  w(>ll  as  during 
the  Coiiimonweallh.  The  llrst  article 
of  Strafford's  Iniprwhineiit  cliai'gcd 
"That  ho  the   said   Tlionms   Earl  of 


(j  7.]  PROTOTYl>E8   OF  CONSTITUTION.  35 

I,ill)uriic    is    not    pliiced    by    that    of    Ilainpileii    in    the    pages 


iwil  Soiit'ly, 


SinilTord  Imlli  traitorouBly  eniloav- 
oiiicil  to  •subvert  tho  fuudamnntal 
laws  luitl  i^'ovfrninout  of  thu  realms  of 
Kiiglauil  and  Ireland,  and  iustoad 
tlicicof  to  inti'oduco  an  arliilrary  and 
lynmuical  fjovcrunifiit  afjiiiusl  law; 
wliicli  III'  liatli  doclarod  by  tiuiloroiis 
wdi'dii,  ciiuncils,  and  actions;  and  by 
1,'ivlnt;  his  majesty  advici',  by  forco  of 
arms  to  compel  his  loyal  snbjects 
to  snbniit  thereto."  (Howell's  State 
Trials,  vol.  iii,  p.  1185.)  Similar  laii- 
f,Miaf;e  was  used  in  the  recitals  of  his 
bill  of  attainder.  (Ibid.,  i>.  ISIS.)  In 
the  debate  on  the  bill,  the  poet  Waller 
aslved  what  wero  the  fnndaiuental 
liiAVK.  He  was  silenix-d  by  tho  reply 
of  Serjeant  Mayuaril,  that,  if  he  did 
not  know  that,  he  had  no  busini'ss  to 
*^it  in  the  House.  Ga'diner's  Fall  of 
the  Jloiiarchy  of  Charles  I,  vol.  ii,  p. 
1  LI),  citinf,'  D'Ewess  Diary,  Harl.  MSS. 
Lilburne  continually  claimed  the 
protection  of  the  "  fundamental  laws" 
uKainst  the  arbitrary  acta  of  the 
llunip  Parliament.  (See  appendix  to 
this  eliapler,  infra,  ji.  TA.)  After  its 
dissolution  and  the  establishment  of 
the  Instrument  of  Gov(?rnmenl,  Crom- 
well said:  "  lu  every  Government 
there  must  be  somewhat  Fundanu'ntal, 
somewhat  like  a  Mav;naCharta,  which 
should  be  standing,  be  umilterable."  .  . 
"That  Parliaments  should  not  make! 
themselves  perin'tual  is  a  Fnn(lai\ieii- 
tal.  Of  what  assurance  is  a  Law  to 
prevent  so  ^''eat  an  evil,  if  it  lie  in 
the  same  Le|,'islature  to  unhiw  it 
apiin?  Is  such  a  law  llki^ly  to  be 
last  in)'?  It  will  lie  a  rope  of  sand; 
it  will  give  MO  sei'urily;  for  the  same 
men  may  unbuild  what  they  have 
built."  (Carlyle,  Letters  and  Speeches 
of  Oliver  Cromwell,  Part  VIII,  Speech 
III  (12  .Sept.,  1I15I  .  Carlyl.''s  WcuUs, 
vol.  xvil,  p.  70.)  In  l<!.")li  Sir  Henry 
Vano,  who  had  returned   from  Mas- 


sachusetts with  his  mind  .soaked  with 
"tho  New  Englanil  idea,"  wrote  a 
letter  to  Cromwell  ou  Tho  Healing 
Question.  He  declan'd  that  during 
the  three  years  of  the  Protectorate 
there  has  been  "great  silence  in 
heaven,  us  if  God  were  phrased  to 
stand  still  and  bo  a  looker-on  to  soo 
what  his  ])coplc  would  nuike  of  it  in 
England.  And  as  God  hath  had  tho 
silent  part,  so  man,  an<l  that  good 
men,  too,  have  had  the  active  and 
busy  part,  and  hav>',  like  themselves, 
made  a  great  S(uind  and  noise,  like> 
the  shcmt  of  a  king  in  a  ndghty  host."' 
He  said  the  time  had  come  for  a  new 
arrangement,  and  recommended  that 
"a  restraint  be  laid  upon  tho  supreme 
])owiM'  before  it  be  erected  in  the  form 
of  u  fundamental  constitution."  He 
considers  how  this  "fundamental  con- 
stitution "  shall  be  (>stablished  : 

"The  most  natural  way  for  which 
would  seem  to  be  by  a  general  council 
or  convention  of  faithful,  honest,  and 
discerning  men,  chosen  for  that  pur- 
po-  '■  by  the  free  consent  of  the  wholo' 
body,  by  order  from  the  present  ruling 
power,  consid(>red  as  general  of  tho 
army.  Which  convention  is  not  prop- 
erly to  exerdsi'  the  legislative  power, 
but  oidy  to  debate  freely  and  agree 
upon  the  particulars  that,  by  way  of 
fundameutal  constitutions,  shall  bo 
laid  'id  inviolably  observed,  as  tho 
conditi  ns  upon  which  the  whole 
body  so  ri'presented  doth  consent  to 
cast  itself  into  a  civil  and  iiolitlc  in- 
corpiu'ation.  Wliich  conditions  so 
agreed  will  be  witliout  danger  of  being 
broken  or  departed  from,  considering 
of  what  it  Is  tliey  are  conditions,  and 
the  nature  of  the  convention  wherein 
they  are  made,  which  is  of  the  iieople 
represented  in  tlieir  highest  state  of 
sovereignty,  as  they  have  the  sword 
in  their  hands  uusubjected  unto  tho 


86 


INTRODUCTIOX. 


[CIIAI-.  I. 


lionoring  the  pioneers  of  the  patlis  toward  constitutional 
liberty.'" 

Although  Cromwell  hroke  his  pledge  to  support  the  Agreemer.u 
of  the  I'eople,  four  years  later,  on  the  dissolution  of  the  IJiuv- 
bones  Parliament,  he  set  in  force  the  Instrument  of  Governmont, 
the  fnsi  written  constitution  of  a  nation  which  was  established.'" 
This  fai'ed,  however,  from  its  want  of  jjopuliir  origin.  The  first 
Parliarent  chosen  under  it  refused  to  acknowledge  its  superiority. 
Cromwell  feared  to  submit  the  disjnite  to  the  courts,  a:id  ordered 
a  dissfilution.  The  representatives  yielded,  although  claiming  that 
he  had  transgressed  the  Instrument.'*  The  second  Parliament 
modified  the  scheme  with  his  consent,  and  within  four  j'cars  from 
its  promulgation  all  2>i'etence  of  obedience  to  the  Instrument  was 
abandoned.'* 

At  tlie  outbreiik  of  the  Revolution  the  colonists  governed  them- 
Belves  through  provincial  governments,  the  executives  of  which 


rules  of  civil  govornnipnt,  but  wlint 
O'.Miisclvos,  ordci'ly  (isscnililcd  fur 
that  purpose,  do  Uiink  (it  to  niiiko. 
Ami  tlio  sword  upou  tlicso  coiidiUons 
subjofting  itself  to  tlio  Biiprcnir' judi- 
cature thus  to  1)0  set  up,  how  suddenly 
might  Imrinony,  righteousness,  love, 
pence,  nnd  safety  unto  tlie  whole  body 
follow  hereupon,  as  the  happy  fi'i'it 
of  such  a  settlement,  if  the  Lord  have 
any  delijjht  to  b<'  amongst  us  I" 

WThe  llrst,  it  not  the  only,  writer 
who  shows  any  arlequate  appreciation 
of  the  S(yvices  of  Lilburne  is  Professor 
Charles  Borgeaud  of  the  University  of 
ruMiova,  Switzerland,  in  Tlio  Kise  of 
Mod("ni  DiMuocraey  in  Old  and  New 
England.  Even  ho  does  not  mention 
Lilburne's  second  trial,  which  contains 
tho  llrst  sueeessful  arg\imi'nt  against 
Iho  validity  of  a  statute  ever  made  in 
a  court  of  justice.  The  writer  of  this 
vork  has  added  a  sketch  of  Lilburne's 
life  in  an  appendix  to  this  chapter, 
infra,  p.  •10. 

"  It  is  reprinted  in  Gardiner's  Con- 
Htitutional  Documents  of  tiie  ruritan 
Kevolution,  p.  311.     This  was  "  voted 


bj-  a  eoimcil  of  olTle(>rs,  Deceml)er  IG, 
ICi.'J.I.  It  is  siiid  l)y  Hume  to  have 
licen  drawn  by  Lambert  in  four  tlays 
(Hume's  History  of  England,  cti.  Ixi). 
Like  the  agri'cmcnts  of  tho  peoplo  it 
provided  for  the  periodical  election  of 
liurliaments  and  set  limits  to  the 
legislative  aulhority  In  favor  of  Prot- 
estant religious  liberty  and  for  the 
security  of  llic  pulilic  debt.  It  did  not, 
howev(>r,  like  the  former,  guarantee 
persor.al  li!)erty. 

1*  Gardiner's  Documents  of  tho 
Puritan  Emoluiion,  pp.  Ix  Ixiii.  By 
the  Instrument  of  Government  (xxii, 
ibid.,  p.  320),  parliaments  could  not 
1)0  "adjourned,  prorogued,  or  di.s- 
solved  without  tiieir  own  consent  dur- 
ing the  first  three  montlis  of  (heir 
sitting."  Cromwi'il  construed  this  as 
meaning  lunar  months  of  twenty-eight 
days,  which  was  tho  mode  of  comi)ut- 
iug  tiio  pay  of  tho  army  nnd  navy ; 
nnd  dissolved  tho  parliament  before 
tho  end  of  three  calendar  months 
(Hume,  History  of  England,  eh.  Ixi). 

i»  Gardiner's  Douumeuts,  pp.  Ixiil- 
Ixlv. 


into 
tunc 
sides 

IldllS 

clict 
wen 
\'ir< 


scril)^ 
cli.  1.x 
diii'ii 

New 
Vii'gi 

aril. 


v--] 


PKOTOTVrES   OF    CON'STITI'TION. 


n7 


were  known  ns  committees  of  Stifety,  a  name  borrowed  from  Iho 
junto  of  officers  who  ruled  England  after  the  dissolution  of  tlio 
lium[)  Parliament.^  Even  before  the  Declaration  of  Independ- 
ence, the  Continental  Congress  recommended  the  colonies,  in  re- 
sponse to  the  recjuest  of  some  of  them,  "  to  call  a  full  and  free 
representation  of  the  people,  to  establish  such  a  form  of  govern- 
ment as  in  their  judgment  will  best  promote  the  happiness  of  the 
jiuople  and  most  effectually  secure  good  order  in  the  province 
(luring  the  contiiuiance  of  the  present  dispute  between  Great 
Britain  and  the  colonies."  ^^ 

The  first  State  constitutions  were  naturally  formed  in  imitation 
of  the  frames  of  government  which  had  been  created  by  and 
under  their  charters.  Two  of  the  colonies,  Connecticut  and 
Rhode  Island,  continued  to  use  their  charters  without  any  change 
of  name,  — lihode  Island  till  1842,  Connecticut  till  1818.  The 
powers  of  the  executive,  legislative  and  judiciary  were  still  kept 
distinct.  The  office  and  name  of  governor  —  except  in  Pennsyl- 
vania and  New  Hanip.shire,  wliere  the  chief  executive  was  called  a 
president,  • —  were  retained  with  a  provision  for  his  election  by  the 
people  or  the  legislature  and  with  a  depiivation  of  those  powers 
which  had  been  most  obnoxicuis  in  coloni.l  times.  The  previous 
existence  of  a  council  and  assembly  made  tiie  step  to  a  creation  of 
two  legislative  houses  natural.  The  council  was  usually  changed 
into  a  senate ; '^  and  the  lower  house  rcjtained  its  old  luime  and 
functions.  Two  States,  however,  Pennsylvania  and  (ieorgia,  be- 
sides Vermont,  which  was  not  yet  recognized,  had  but  a  single 
house.  But  Pennsylvania  had  an  anomalous  and  unsatisfactory 
cheek  on  its  lower  house  by  a  body  of  censors ;  executive  councils 
were  retained  for  a  while  in  I'eiuisylvania,  N'erniont,  (Jeorgia,  and 
N'irginia ;  aiul  Massachusetts  has  kept  till  the  jiresent  day  a 
governor's  council  as  a  cheek  on  tJie  powere  of  the  executive, 
besides  the  senate  as  a  check  upon  the  house  of  representatives. 


■">  This  EiiRliKli  commltton  Is  do- 
Kcrilicd  in  IIuiui-'s  History  of  EriRlnnd, 
rli.  Ixii.  Th(^  siimc  uanid  was  adopted 
duriri;^  the  French  Ri'volution. 

''  Tills  was  thi'  rcconimfmdatlon  to 
N'i'w  Hiiiii|i8luro,  Houtli  Carolina  and 
Viif,'inia  in  1775.  Journals  I,  231,  235, 
271). 


-■■'  In  Maryland,  Massaehusotts, 
Now  }Iani|is!iiio,  Now  Yurie,  Nor'h 
Carolina.  Soutli  Carolina,  ami  Virginia, 
tho  upper  house  was  eallod  "The Sen- 
ate," in  Pelawaro,  "Tho  C<)uneil,"  in 
Now  Jersey,  "Tho  Legislative  Coun- 
cil." 


88 


INTRODUCTION. 


[ciiAr.  I. 


The  courts  were  usually  continued  with  their  old  powei-s  unchr 
names  from  which  all  rL't'eroiKH*  to  the  kinp  was  exchKh.'d  ;  but 
tliey  had  extended  tlwiv  jurisdictions  to  an  extent  previously  un- 
known. Tliey  had  claimed^''  and  in  at  least  two  eases ^  liad  exer- 
cised the  power  to  refuse  to  enforce  an  act  of  a  State  legislature 
iia  unconstitutional.^' 


!:;  8.  Models  of  tlic  Federal  Constitution. 

The  Federal  Convention  was  composed  of  men  wlio  had  l)een 
accustomed  to  rule  and  lej^dslate  in  (lie  camj)  and  the  senate. 
Tlicy  had  learned  hy  exiierience  the  imi)ossihility  of  foreseeiuff  the 
results  of  untried  forms  of  ^rovei'iinient.  foundt'd  on  n  jirinri  rea- 
soning, riiey  had  suffered,  not  only  from  tlie  arliilrary  power  of 
the  crown  and  Parliament,  hut  also  from  tiie  iml)ecility  of  Con- 
gress. 'I'liey  iiad  realized,  too,  the  evils  rcsultiuir  iVom  hasty 
action  hy  State  legislatures  unrestricted  irinn  making  lu'eaches 
of  the  i)ul)lic  faith  and  setting  aside  jnivate  contracts.  They 
had  acquired  by  tradition,  as  well  as  from  tiie  study  of  '•  The 
Spirit  of  the  Laws,"  that  respect  for  the  British  Constitution  with 
Aviiieh  ]\Iontes(piii'U  had  inspired  Europe.  Tiie  sni)eriority  of  the 
State  constitutions  whicdi  hove  to  lliat  a  resendilanee,  over  the 
Articles  of  Confederation,  was  of  easy  recognition.     As  soon  as 


s'ConiiMoiiwi'nllli  r.  CiiUm,  i  Call. 
(Vii.)  S,  A.n.  17^-2;  Sviiishury  Civsi-, 
Kirby  (.Cuuii.  ,  Hi,  117,  A.  I>.  ITHo. 
Sro  till'  iir^ii'.iiicnt  of  Goorjjc  JIiisini  in 
lloliin  r.  Hiirilinvay,  .Icffci'Sdii'.-t  Ri'- 
porta  (Vti.)  m,  lis,  12:t,  \.  JX  1772. 

-■•  Tnn ctt.  r.  Wcivlcn,  lUiodc^  Isliiiul, 
A.  r>.  17S(1 ;  {'lijiuiUi'r's C'riiMinal  Tiiiilw, 
vnl.  ii.  |i.  Ci'.t;  Tli'iyi'i-'s  Constitu'.ioiiiil 
Cas<>.«,  vol.  i,  73;  Ilolmos  v.  Walliiii, 
Now  Jersey,  1780,  oiteil  in  Slate  r. 
Paikhui'st,  4  Halslcad  (N.  J.;,  Ill; 
Am.  Uli^t.  Assoc,  rajii'i's,  vol.  ii.  1."). 
Ill  Itul^ei-H  r.  Waddiiij'lon,  Tlinyer's 
Couslilutlonal  Cases,  vol.  1,  i).  (ill,  an 
ael,  of  llie  New  York  leiiisliiture  was 
held  void  liy  the  llayor's  Court  ot  New 
York,  .\ufjiiHl'27, 1784,  lieciuise  in  vicda- 
tionot  the  treaty  of  jieace.  llefereneo 
is  made  tou  Massachusetts  case  In  the 


letter  by  .T.  U.  CiiltinK  to  Thomas  .Jef- 
ferson, of  July  11,  17SS,  jiriiitid  in 
Hancroffs  Constitution,  vol.  ii,  jip. 
472,  47.1.  The  North  Carolina  i-ase, 
nayardr.  Sin^detou,  I  Martin  (\.C.)42, 
was  dceidi'd  in  Novenilier,  17s7,  afli'r 
tlie  .■idjoiirnnieiit  of  the  Federal  Con- 
vention. 

-•'>  This  snliject  will  lie  discussed  at 
IcnKlli  in  the  siiliseiiuent  ehai)ters  on 
the  Judicial  Power.  It  is  tn>atod  in 
The  Itlation  of  tlie  Judiciary  to  111." 
Consiiliilloii,  by  Win.  JI.  Melps, 
American  Law  Ifeview,  March,  ISH.") ; 
Judiciid  I'ower  and  I'nciaisiitutional 
IjCKislntion,  by  Hrlnton  Co.\e,  pa*iim; 
and  Thayer's  Const itutional  Cases, 
vol.  i,  jip.  48-94;  and  llr.  Justice 
Gray's  notes  to  Qiiiuc^j's  Ee[iorts. 


(•n\r.  I. 

i-s  uihUt 

l(!(l ;  but 

niisly  un- 

liiid  exci- 

jgislaturo 


luul  been 
10  seiuite. 
eiiig  tliii 
priori  ivii- 
power  of 
y  lit'  Cdii- 
roiii  Imsty 
g  liroiiches 
its.  They 
y  of  "Tlie 
;ution  with 
ority  of  the 
;,  over  the 
As  soon  us 


!;'••] 


MODELS    OF   THE   ('ONSTITUTIOX. 


89 


it  was  determined  tiiat  the  new  {rovernmcnt  shnuhl  he  national  in 
form,  they  turned  for  instruction  to  tlie  description  of  tlie  Consti- 
tution of  (ireat  Britain  hy  Sir  William  lUackstone.' 

From  his  account  of  tlie  jjowers  of  tlie  crown  they  ilrew  those 
of  tlie  executive,  —  not  from  the  powei's  actually  I'xcrcised  by 
(icortje  I J  I,  when  the  weakness  of  his  two  predecessors  had 
lirouglit  the  veto  power  into  disiise  and  laid  tlie  foundations  of 
that  system  of  csabinet  (Jovernment  which  has  since  restricted  the 
crown  to  a  men;  ceremony  ;2  hut  from  those;  whicli  the  hiiijf  still 
jiivscrved  in  theory  and  wliicli  w<'ie  actually  exercised  within  a 
ccutury  by  William  of  Oraiiifc. 

Some,  of  whom  Hamilton  was  one,''  wen;  so  disgusted  by  the 


§  8.  1  Hiuuilloii  lijiil  llio  iiKlisci-t'tioii 
tdiidinil,  tills  111  the  time  :  "I  dciiy  thi> 
fiiniilai'ily  lictwixl,  llic  iircsoiit  cdiistl- 
tulioii  mid  that  (if  tlio  I'liitcd  Nether- 
lands." "  III  my  iiKirtt  humlilc  oiiiiiion, 
it  has  a  I'.nich  unalcr  alTlnily  v,i;h 
tlie  j»i>vci'niiient  wlileli,  in  all  huiiian 
lnohr'.Mlity,  will  reiiiaiii  when  the 
liislory  of  tlie  Sevi'ii  ri'oviiices  KJiall 
be  foi-eotteii."  (Letters  of  ('acinar,  liy 
All  xaiider  llamiltiiii,  in  The  Daily 
AdverllHm-,  Oet.  1,  17s7 ;  Fiinl'ri  Eri- 
wiys  on  the  t'oiislitution,  p.  '2S7.) 

-James  Iredell,  after\vard«  a  jus- 
tice of  the  Supreme  Court,  himmiis  to 
have  liad  some  appreeialioii  of  I  he 
functions  (.t  the  Erititdi  cabinet.  See 
liirt  Answer!'  to  Jlr.  MaBon's  Objee- 
lior.s  to  till"  New  Coii.'ititution,  Ford's 
1  ..iiiplilels   on    the    Constitution,    p. 

;;is. 

■'  ilaiiiilloii  made  no  secret,  of  this 
ill  ;irivate  conversation.  See  the  let- 
ter iif  (roiivi'meur  Morris  to  C)f;den. 
of  Dec.  'is,  1S04:  "Our  jioor  friend 
llaiulllon  liestrode  his  hobliy  to  the 
Krcat  annoyance  of  his  friends,  and 
not  without  injury  to  liiiiiself.  More 
a  theorotle  than  a  practical  man,  lie 
was  not  eullii'lently  convinced  that  a 
system  may  b(>  ^ood  in  itself  and  bad 
ill  relation  toparticularcircuinstances. 
He  well  knew  that  Ills  favor; ■■>  form 


was  inadmissilile  unless  as  the  result 
<if  civil  war;  and  I  suspi'<'t  that  his 
belief  in  that  which  ho  called  an  ap- 
proaching crisis  arose  from  a  convic- 
tion that  tho  kind  of  government 
most  suitable,  in  his  ojiinion,  to  this 
extensive  country,  could  bo  cstab- 
lislied  ill  no  other  way." 

"(ieiierai  llamillon  lialeil  republi- 
can ^overment  because  he  confoiindod 
it  witii  deniocrallcal  noveriiiiienl,  and 
ho  deti'sled  the  latter  because  ho 
believed  it  miisl  end  in  despotism  and 
be  ill  tlie  meantime  destriielive  to 
public  iiiorality."  See  .siiprrt,  §2,  nolo 
U. 

This  testiinony  by  his  fricMid  is 
unimi'eaciiable  and  is  corroborated 
by  Jefl'er.soii  in  his  Ana  (Jefferson's 
Works,  1st  eil.,  vol.  Ix,  p.  9!)),  whine  he 
re[iorls  Ilaniilton  as  saying  to  him. 
Auk.  in,  l?.)l:  — 

"I  own  it  is  my  own  opinion, 
tliou^rli  I  do  not  publisli  it  from  Dan 
to  ]5eerslielia,  tiiat  the  jireseiil  (t"vern- 
nionl  is  not  lliat  whii'li  will  answer 
till"  ends  of  society,  by  Hiving  stability 
and  )irotec(ioii  to  its  rights,  and  that 
it  will  proliably  be  found  expedient 
to   no  into   the  liritisli   form." 

Hamilton  himself  said,  in  a  pam- 
phlet in  defence  of  t  he  Constil  ntioii : 

"It    truth,   then,   is  permitted    to 


40 


INTItOOrL'TION. 


[riiAi'.  I. 


license  of  the  times  tlmt  tiu?}-  would  liiive  cstiiblislied  ii  iiionan'hy 
if  tliey  Imd  iiad  the  power.  I  Iiul  Wii.shingtoii  been  iv  father,  he  would 
iiave  had  more  difficulty  in  resisting  the  temptiitiou  to  assume  the 
c  rown  which  was  once  at  least  within  his  grasp.  A  few  men  out- 
side of  the  Convention,  who  doubted  tlie  wisdom  of  popular 
government,  advocated  the  sapient  soheme  of  swearing  allegiance 
to  tiiat  son  of  (teorge  III,  then  IMshop  of  Osnaburg,'*  who  after- 
wards, when  Duke  of  York  and  ("oniniander-in-('hief,  scandalized 
even  those  who  thought  the  corruption  of  the  Uritish  government 
its  strength,  by  allowing  his  mistress  to  sell  the  conunissions  which 
he  signed.'' 

Itiuno's  that  llie  Convention  was  about  to  I'ecommend  some  such 
folly  Ivjcunie  so  loud  that  a  few  of  its  members  felt  obliged  to 
answer  them.  •  'I'hougli  wo  cannot  ailirmatively  tell  you  what 
we  are  doing,  we  can  negatively  lell  you  what  we  are  not  doing 
—  we  never  oiax  tl'.ougiit  of  a  king."  '^ 

'J'he  pov  ers  of  tlu;  upper  house  of  the  national  legislature  were 
assimilated  to  those  of  tiie  House  of  I^ords.  Like  that  it  had  juris- 
diction over  the  trial  of  impeachments  and  could  not  originate 
money  bills,  'i'he  House  of  Hepresentatives  was  intended  as  an 
imitation  of  the  House  of  Connnons.  lint,  though  the  main  lines 
of  the  new  instrument  were  copied  from  a  i'orni  tliat  had  been 


Hpoak,  the  muss  of  tlic  pp()i)l(>  of  AiiuT- 
ica  (any  iiion>  tlinii  tlie  nuiHs  of  other 
couiiUics)  niniiiil  juilj^cs  with  any  dc- 
i^Too  of  precision  (•oiiccniiiiK  t  ho  fitnoss 
of  this  new  Constitution  to  tlw  peculiar 
Kiliiation  of  America;  they  liavc,  liow- 
cver,  (lone  coiTcclly  in  dili-KatiiiK  tlio 
jiowor  of  framing  a  tiovcrumcnt  to 
tliosn  every  way  wortliy  ami  well 
(lualilled."  'LeiteM  of  C'ai'sar,  liy 
Ah^xander  Itamilton,  The  Paily  A.l- 
vertiscr,  (.)c!.  17,  17M7  ;  Ford's  Kssays 
on  th(!  Constilulion,  \<.  'JS'.).)  t'ndei- 
tlio  iullucuco  of  Madison  and  .lay,  he 
iii'cd  nioro  tact  when  lie  wi-ote  tlm 
ininiortJil  numhers  of  Tlie  Federalist. 

*  Curtis,  in  his  Constitulional  His- 
tory, V(d.  i,  p.  G24,  note,  (puites  u 
curious  letter  from  Colonel  Iluniph- 
ri'vs  to  Hamilton,  writteu  from  Now 


Haven,  Conn.,  Sept.  Ifi,  1787,  which 
says  :  "  It  seems,  hy  a,  couversalion 
I  liavo  had  here,  that  the  ullinialn 
praclicability  of  introdueing  the  Bish- 
op of  Osnaburt!  is  not  a  novel  idea 
among  those  who  were  foinierly 
termed  Loyalists.  Ever  since  tho 
peace  it  has  lieen  occasionally  ijilUed 
of  and  wished  for.  Yesterday,  where 
I  dine(l,  half  in  jest,  Iwilf  in  earnest, 
he  was  given  as  the  llrst  to.-Lsl.  '  See 
other  (piolations  by  Curtis  to  tho 
same  efl'ei  t. 

!•  See  A  lleport  of  the  Evideni'e  and 
Proceedings  ujion  the  Charges  pre. 
ferreil  against  the  Puke  of  York,  Al- 
bion IVer.s  Edition,  1809. 

»  Pennsylvania  .Tounial,  Aug.  27, 
1787,  (J noted  by  Curtis,  Constitutional 
History,  vol.  i,  p.  C2G. 


('<)Mi'i:()Misi;s  UK  Tin;  constititkin. 


-!( 


stiUiii)C'(l  witli  tlic  iipjjroval  of  tiiiio  iis  well  us  of  iiliihisoiilioi-s,  tlii! 
iinit;itioii  was  not  servile.  They  knew  l)y  experience  as  well 
iis  liistory  the  iiiiseliief  in  the  colonies  iind  the  mother  countiy  t!i!it 
hiul  been  caused  hy  the  lack  of  sullicient  checks  ujion  the  powei-s  of 
Parliament  as  well  us  the  prerofrative.  They  not  only  a(lo|)te(l  the 
main  checks  which  were  a  part  of  the  Hritish  Constitution,  but  they 
tnok  othei-s  which  had  heen  incorporated  in  the  new  Stu'i-  consti- 
tutions as  well  as  some  invented  liy  themselves.  'J'lie  llrsi  f'onsti- 
tution  of  Massachusetts  has  a  closer  reseiublauco  than  any  other 
to  that  of  the  United  States." 


go.  CoiiiproiiiiscH  of  tlio  Constitution. 

Compromises  are  the  foundation  of  the  I'ederal  Constitution. 
The  niend)ers  of  the  Convention  were  too  experieiiccKl  in  pid)lio 
life  to  sacrifice  the  public  welfare  for  a  syllogism.  They  eared 
nothing  for  ii  name  when  tiie  thing  wished  could  be  gained  in 
substance  under  another  term.  They  were  too  wise  to  reject  a 
(lart  when  they  could  not  obtain  the  whole.  Their  sagacity  was 
excelled    only    by    their    patriotism.       Provisions    which    to    tho 


'  This,  which  with  somo  ainend- 
iiioiits  is  still  in  forcp,  was  tho  most 
ciiroriilly  I'onstrucU'd  Stiito  Const it\i- 
lion  thiMi  in  oxistonrc.  Tlio  ri'jootion 
li.v  tlio  town  ni<'oliiif?8  of  tho  pmposod 
Cmstitiition  of  1778,  ilniftcd  lij-  tho 
Stuto  l(,'j;ialiit\in>  or  (ionoraK'ourt,  li(>- 
(■iiuso,  (inio!if,'stolh('r1hinf;s,  ililid  not 
provldo  sullli'iontl.v  for  n  scpiirutioii  of 
tho  thrco  dr'piirtnicnts,  h.nd  causod  a 
thorough  ronsidonilion  of  tho  wliolo 
subject  bv  tho  jiioplo  of  tho  Stnto 
bi'fiuo  tho  mooting  of  tho  Constitu- 
tional Convontinn  in  1779,  which  was 
I'liosen  for  that  solo  purposo.  From 
this  Boom  to  havo  boon  takon  tho 
clausos  in  tho  Fodcral  Conslilution 
conciM'iiing  tho  vcio  jiowor;  impoaoh- 
nionls;  haboaa  corpus  ;  and  tho  tcuiiro 
of  ollico  of  judges.  In  that  also,  tho 
upper  house  vt  tho  Lcglslattiro  was 
called  the  Sonato  and  liad  tho  power 
(o  amend  but  not  to  orlginale  nu)uey 
l)ills:  and  tho  lower  was  tho  House 


of  Ropresentiitivi's.  Tho  same  namo 
with  different  powers  over  money 
bills  and  tho  power  to  try  impeach- 
ments was  t;iven  lo  the  upper  houses 
in  six  oilier  SI  ales.  Supra,  §7,  note  22. 
Tlie  name  House  of  llepresenlaiives 
was  ul-o  then  applied  to  the  lower 
liouso  in  tlio  Slnto  C  inslitulir)ii.i  of 
Now  Hampshire,  South  Carolina,  r(!n;i- 
syivaiuti  and  Vermont.  Tho  Journtil 
of  tho  Convi'nticin  wideh  fram<'d  tlu^ 
(-onstitulion  of  1780,  was  publi.hed 
by  tho  order  of  the  Stato  Legislaturo 
in  1832.  A  pamphlet  containing  a 
report  of  tho  reasons  for  tlio  rejoetion 
of  tho  Constitution  of  1778  by  a  con- 
vention of  delegates  of  tho  towns  of 
Lynn,  Saloni,  Danvers,  Wenham, 
jranehester,  (tlouee-ter,  Ipswich,  N(>w- 
buryporl,  iSaiisbury,  ILixTord,  Mo- 
thuen  and  Topslleld,  held  by  adjourii- 
nu>n!,  Ipswich,  Ajiril  21),  1778,  was 
pul dished  by  .John  Jliehaol,  at  Now- 
buryport,  in  1778. 


42 


INTItODrCTION. 


[ciiAr.  I. 


iiiMJorit y  seemed  l)eiic(iei;tl  were  rejected  becaUHC  it  wiis  (li()U;,'lit 
tli;it  tlieir  express  iiielusioii  niijrlit  eiuliUiger  the  ratiliciUioii  dl' 
tlie  iiltiii.  wliile  tlipy  could  under  the  general  language  he  subse- 
quently established  by  Congress.' 

jM'ter  the  Htrugght  between  those  who  wished  a  new  national 
fonstitntion  and  those  who  were  willing  only  to  accept  an  amend- 
ment of  tlie  Articles  of  Confederation  had  ended  in  the  defeat 
of  the  liitter,  tlie  word  "national"  was  strieken  from  tlie  pajier. 
Provided  that  tiie  I'orni  was  national,  they  were  satisfied  that  it 
might  be  termeil  federal,  even  though  tluit  name  was  sus<'ei)tible 
of  two  incfnisistent  iiiterinctations.^  'I"he  names  of  I'resident  and 
Congress  w(!ro  continued,  because  used  under  the  Confederation, 
although  the  House  of  Hepresentatives,  at  least,  had  no  resembl  'uee 
to  a  congress  of  and)assa<lors,  and  the  new  executive  did  n  ;- 

side.  Tliese,  liowever,  were  in  tlie  nature  of  concessions  to  , 
prejudices,  made  voluntarily.  Hetween  the  members  of  the  I  on- 
vi'iition  were  constant  difl'ereiices  which  more  than  once  threatened 
a  disruption,  and  wt'ie  only  harmonized  b}-  reluctant  coniiiroinise. 
The  larger  States  were  resolved  to  cancel  the  injustice  of  the 
Confederation,  wliicli  jihiced  catdi  of  them  upon  an  eipial  footing 
with  Connecticut  and  Khode  Island.  Some  of  their  delegates 
wished   to   insist    upon    this  at  the   opening  of  the  Convention, 


§1).  1  Haiiiilldn's  Oiiinioii  (m  tin- 
Bank  'Hiiiiiiltoii'H  Works,  1st  cd.,  vo!. 
i,  p.  1-7;  Slciy  on  tho  Constitution, 
§  1:208;.  When  lhi<  grant  of  an  e.\- 
jiross  ];oui'i-  to  iiicoi'iionitii  a  liaiik 
was  proiKKsed,  Goiivi'rnoiir  Monis  op- 
posed 11,  ol)Si"i'vin^  that  it  was  <'x- 
trcnioly  doiihlftil  wlwllier  the  Consti- 
tution tlwy  wcro  fniMiin^;  could  ever 
]u'  i)assed  at  all  l>y  the  people  of  Anier- 
lea;  that  to  t;ive  it  its  best  cliauee, 
however,  they  sliould  "  make  lias  pal- 
atahlo  as  jjossible,  and  yni.  nolhini^ 
Into  it  not  very  essi'iilial,  wliieli 
lid,i{hl  raise  up  enemies"  (.Teffi'rson's 
Ana,  Works,  Isl  eil.,  vol.  ix,  p.  1!)1). 
So  (louverneur  Morris  op]iosi!(l  the 
Inclusion  of  an  express  grant  of  jiower 
to  establish  n  univorsity,  saying:  "It 
Is  not  uueessury.    The  exclusive  jHiwor 


at  the  seal  of  governmont  will  reaeli 
the  ol)jeet  "  (lladlson  Tapers,  Elliot's 
Debates,  2il  ed.,  vol.  v,  p.  nil).  His 
own  proposition  of  tlio  erealion  of 
six  ealiiiict  oiTlees  was  not  adopted, 
uiidoiil)todly  forthesaino  reason  (ibid., 
|).  tirr.  Morris  lulmitted  in  Ms  letter 
to  ri.'kering,  Dec.  22,  1811,  th.it  when 
he  drafted  the  article  on  llie  judicial 
power,  "  conlllctingopiMions  liad  been 
iM.'iintaineil  with  so  much  professional 
astuleness,  that  it  be<'ainu  necessary 
to  select  iihrases  which,  expressing 
my  own  notions,  would  not  shanin 
olhers,  nor  shock  their  self  love;  and 
to  the  best  of  my  recolli'ctioii,  this 
was  the  only  part  which  passed  with- 
out cavil "  (il)id.,  vol.  1,  ]).  507). 

'^  Seo  th(!  discussion  of  tlie  moaning 
of  tho  terra  quoted,  infra,  §  17. 


•:^  '•'•! 


(■(>.MI'l!()MISi:S    (II"    TIIK    CONSTrn    Tln.V. 


48 


mill  til  (li'iiiiiiid  tliiit  viitrs  ill  tliat  IhkIv  .sluiiild  he  ccnuitt'd  in 
iUHMinlain'e  with  Uii'  iiuiiilicr  (if  f(iiistitiii'iit.s  ivjirL'si-nted."  ' 'nly 
tlu!  uioilcratioii  nl'  \'iif,'iiiiii  iiivvnitcd  such  ii  com-Ho,  whiili  •,-,■, iul«l 
hiivc!  Ijidkcii  up  ilu' iinict'i'iUiigs  at  thf  stiirt.  'J"ho  suiivllcst  SLiLoh 
wt'i'u  ffjiially  detcniiiucd  t(i  niiiki)  iki  Hacrificu  (if  thiiir  jiivsent 
ri^dits,  and  |i(iiiit('(l  to  tlic  (ii>|ircsHiiins  of  ^Vtlions  and  SjiarLi  upon 
tlitir  wi'akti'  ((infcdcniti  •-  a.^  a  wainiiiL,'  a!.fainst  the  danj'iT  (if  an 
lic!,r'.'iii(iiiy.  I  lie  scttKiiiriil  cif  liiiw  (pu'sli'iii  liy  tlio  addjitidn  of 
the  sutifjjfcstiiiii  (if  lli'u'i  !■  SiuTinaii  \H'\  only  saved  the  liiion,  lint 
est  dilislii'd  the  only  npjier  elianilHr  in  the  world  which  at  t!iu 
end  of  the  nineteenth  ceiituiy  enjoys  either  power  or  resiiect. 

The  dil'ferencc  hctwecn  the  occupations  and  donusiic  institu- 
tioiis  of  the  North  and  South  presented  the  same  (juisiaiim  which 
divided  the  I'nion  after  it  was  formed,  and  they  nearly  prevented 
at  the  liivt  that  cimsolidation  which  seventy  yeai-s  later  they 
almost  tore  apart.  Coninierce  and  shippinj' w  n-e  tlic  industries 
hir  which  the  climate  and  hurliors  of  New  ICnLjland  had  fitted  its 
inliahitants.  I'or  these  olijcets  its  dide;;atcs  deinandcd  (hat  a 
iiiajerity  ill  ( 'uuifii'ss  should  have  the  jiower  to  jnss  a  navii^atiou 
law  and  ne^^nitiatc  coiiiiiiercial  treaties.  S.itislied  ;url  enriched  liy 
at;iiiulture,  the  plantiis  of  the  .South  were  williii',,^  to  have  their 
rice,  indigo  and  tohacco  shijiped  on  foreii^^n  as  v.i  il  as  donustie 
liiitt<iiiis.  They  feared,  however,  lest  the  ijtiur.il  e'overnnient 
iiiinlit  discriuiinate  against  them  liy  a  tax  upon  tlieir  exports. 
'I'liose  of  the  interior  had  good  cause  i'uv  fear  lest  a  majority 
might  through  a  short-sighted  [lolicy  liarter  to  Spain  the  right  of 

•'■  Previous    to    till'   .irrivfil  (if    ii  Tlio  nipmlicru  from  Viij,'inia,  conroiv- 

miijorily  of  llm  slates,   tlic  rule   liy  lii^  that  sucJi  jiii  iillciiiiit  iui(;lit  bogct 

wliicli  tlioy  ou;4ht  to  v()t(!  in  the  Con-  fatal  aUcrralioim  bl't^>•oen   tho  largo 

viMillon  hail  lici  n  made  a  siilijrct  of  and  siuall  SUites,  and  tliat  it  ^vould 

ooiivi'iKMtion     anion)?    the     incniljcrs  lie  (-asior  to  prov.iil  ou  tho  latter,  in 

imseMt.    It  wa'<  passed  liy  fioavorncur  tlio  eoiirso  of   tlio   dellbernlions,   to 

Morris,  and  favored  by  Uobert  Morris  give  up  their  eiinality  for  tho  Bake  of 

and  o.Iicrs   fioiii  Pennsylvania,  Ui.il  an    effoelivo    ginc  nment,    llian,    on 

the  lai;{o  slatis  shmild  unite  in  liriiily  takiut?  the  Held  of  ilticussioa,  to  dis- 

I'cfusin^'  to  the  small  states  an  ei|iial  arm    theniBclvea  of    (ho    rifj'.it,    and 

vote,  as  inireisonable,  and  as  enabling  thereby    throw     tliemselvos    oa     the 

ll\e   small   states    to   iiet;ative    every  mercy  of  tli"  lari^cr  stat'S,  disioiintp- 

j,'eod   system    of    ^;overnnient,    which  naneedjuul  stilled  tlie  project."    lladi- 

iir.isl,    in    the    nature   of    thiiiL;s,    be  .son  r.'ijiers,   Elliot's  Debates,  'Jd  ed., 

founded  ou  a  violation  of  that  eiiuallty.  vol.  v,  p.  123. 


44 


INTKODUCTION. 


[chap.  t. 


tree  navigation  of  the  Mississippi  in  return  for  commercial  privi- 
lc';^vs  in  tliat  country  and  its  colonies.*  They  were  unwilling  to 
give  up  the  right  of  importing  slaves  from  Africa;  and  wished 
when  slaves  escajjed  to  have  them  returned  hy  the  Northern 
States.  Representation  hy  population,  they  insisted,  should  be 
proportioned  to  slave  population  as  well  as  free,  if  for  no  other 
reason,  to  prevent  the  destruction  of  slavery  by  a  capitation  tax. 
The  conscientious  scruples  of  the;  descendants  of  the  Puritans 
of  the  North  made  their  delegates  refuse  to  recognize  any  right 
of  property  by  man  in  man.  Tills  matter,  too,  was  adjusted  by 
the  adoption  of  tlie  rule,  tiiat  rein-esentatives  and  <lirect  taxation 
should  both  be  proportioned  to  tlie  number  of  free  iidiabitants 
plus  three-fifths  of  tlie  rest,  and  that  a  capitation  should  be  con- 
sidered a  direct  tax.''  The  taxation  of  exports  by  the  States 
severally  or  united  was  forbidden  absolutely.  The  power  to 
regulate  commerce  was  vested  in  a  majority  of  Congress,  but  it 
was  provided  tliat  treaties  could  not  be  negotiated  without  the 
consent  of  two-tliirds  of  tlie  States  present  in  tlie  Senate.  Tiie 
slave-trade  was  [ireserved  for  a  pciod  of  twenty  years;''  and 
fugitive  slaves,  liivc  fugitives  from  justice,  were  to  be  returned  by 
the  free  States  to  tiieir  uiasters.  The  conscience  of  the  Is'orlli 
w's  salved  by  tlie  omission  of  the  name  of  slave  from  tiie  Consti- 
tution. "Circumlocutions,"  said  Joii  '^uiney  Adams,  "were 
the  fig-leaves  under  which  these  parts  of  our  body  politic  are 
decently  concealed.''  ^ 


*  Jay,  who  liiij  boon  Bont  to  Spain 
to  ni';;otiato  ii  li'oaty,  hful  rcciucsti'd 
(\)nj;r(>s.s  for  permission  to  poiii'oilo  to 
Spain  llu)  ('xt'lu'=iv(i  viBlit  to  nuvii/atii 
tlio  MisslRsip|)i  for  a  liniltod  period  of 
tine.  CoMKi'i's-t  by  a  vote  of  seven  to 
Ih  3  had  aulliorizeil  lilni  ho  to  do,  and 
ho  )nid  involiated  u  treaty  'or  tliat 
pui'pose,  which  had  not  been  riitllled. 
Washinj-Uou  also  win  in  favor  of  this 
<-ourse,  In  return  for  favorable  enni- 
luereiul  advuntageB.    Sou  Curtis'  C!on- 


stltntional  Histoi-y,  vol.  i.  pp.  210-214, 
citiiiy  WashinKlon's  Wrilliit;H,  l.st  ed., 
vol.  ix,  pp.  172,  17:1,  IHl),  20.';,  20r.,  2G1. 
Secret  .lo'.irnal.s,  vol.  iv,  |ip.  50,  .'Jl, 
100,  110,  111. 

''  ("onslitutioii,  .\'-tirle  I,  §;;  2  and  'J, 
infra. 

"Till  1808,  Couslilution,  Article  I, 

§"• 

'  Argument    in  the   Amit-tad  Case, 

p.  ;ia. 


§  10.] 


RESULT  OF   FEDERAL  CONVENTION. 


45 


§  10.  Result  of  the  Federal  Convention. 

As  the  result  of  their  labors  they  establislied  a  federal  republic 
with  a  presidential  form  of  goveriiineT't.  They  created  a  strong 
and  stable  nation  with  local  self-government  secured  to  the  differ- 
ent States,  who  were  restrained  from  creating  domestic  discord 
liy  unjust  discrimination  in  favor  nf  tlieir  own  citizens.  The 
instrument  that  they  framed  has  withstood  the  sliock  of  the 
invasion  of  a  foreign  army,  which  captured  and  burned  the  capi- 
tal, and  of  a  civil  war  whicli  divided  the  whole  country  for  five 
years  into  two  liostile  camjjs,  and  left  the  conquered  section  so 
disordered  tliat  for  ten  years  more  its  local  government.s  were 
upheld  by  the  national  sword.  During  all  this  time  private  i)rop- 
<'rty  has  remained  secure,  and  civil  lilicrty  undisturbed  cxcejjt  foi- 
a  brief  interval  amidst  t!ie  einlx/rs  of  relndlion.'  Despite  the  strain 
caused  by  the  inniugralion  of  a  vsist  foreign  j)opulation  of  servile 
races,  debased  by  genenitions  of  tyranny,  by  custom  as  well  as  in- 
lieritanee  unfitted  to  exercise  the  rights  of  citizensjiip,  the  sov- 
ereignty of  the  ])eoplo  has  remained  undisc'iedited  and  niiimi)aired, 
as  a  beacon  light  for  the  friends  of  popular  government  tiirougli- 
out  tlie  world.  In  the  struggle  ])etweeu  t!ie  suppoiteis  of  eiviH- 
zation  against  tiie  ]iord(;s  of  l)arbarians  within  th>'ir  runl<s,  whicii 
is  now  in  progress  thi'ongliout  Kuro{)e  as  well  as  America,  [iroi)','rty 
has  more  safety  here  tlian  in  any  other  country.  'Die  speciaele 
(if  a  jieople  submitting  pnjjlic  controveraics  to  the  same  mo<le  of 
settlement  as  i)rivato  hnv-suits  and  ae(;[uieseing  in  tlie  decisions, 
has  set  an  example  which  foreign  n:itions  arc  about  to  imitate, 
not  only  in  internal  discords,  but  in  those  which  ai'e  inter- 
II  itional. 

The  invention  of  representative  government  in  I'^ngland  re- 
nmved  the  obstacle  which  had  made  it  impossiblf^  in  (i recce  and 
lt:dy  to  combine  freedom  with  an  extension  of  territory.  Hut 
ilemocratic  government  could  not  be  accompanied  by  stability  of 
[lublic  credit  and  security  of  private  i)roperty  until  the  I'nited 
States  fii-st  established  a  written  constitution  guarded  from  in- 
fringement by  the  courts. 

1  ;  i/ra,  §  38. 


APPENDIX  TO   CHAPTER   I. 


JOHN  LILBURNE  AND  THE  AGllEEMENT   OF  THE  PEOPLE. 


IMoRE  than  a  passing  wonl  is  clue  to  freeborn  John  Lilbmne,  of 
whom  Huino,  !i  synipathiziT  AviUi  neither  hin  roligioii  nor  hid  politics, 
said  that  lie  was  "  the  most  turbulent,  but  the  most  upright  and 
courageous  of  human  kii.d ;  "  *  and  who  by  his  experiments,  as  well 
as  his  teachings,  did  more  ihar.  any  other  to  found  that  present  sys- 
tem of  public  law  which  gives  the  courts  power  to  disregard  an  act 
of  the  legislature  as  unconstitutional.  He  was  born  about  1618,  the 
son  of  Richard  Lilburue,  a  gentleman  of  Thickley-Punchardon  in  the 
County  of  Durham.'-  His  name  appears  in  the  painphlets  written  by 
himself  both  as  Lilburn  and  Lilburue,  the  later  publications  having  the 
final  e.  He  had  little  early  education  ;  admitting  that  he  never  acquired 
the  knowledge  of  any  tongue  but  his  own,  except  the  mastery  of 
ordinary  Latin  law-terms;'  but  he  ac(iuired  by  study  during  liis  im- 
prisonments a  wide  knowledge  of  English  history  and  a  good  smatter- 
ing of  law.  Wiieii  abf)ut  fourteen  years  of  age  he  was  appren- 
ticed to  a  cloth-dealer*  in  London,  where  he  probably  acquired  those 
Puritan  doctrines  to  which  he  adhered  through  life.  Thence  he  went 
to  Holland  for  a  short  time  and  engaged  in  trade  there  as  a  factor.* 
On  his  return  in  IC.'ilt,  wiien  about  twenty  years  old,  ho  was  ar- 
rested and  brought  before  the  Star  Chamber  on  tlie  false  e'  rge  of 
importing  factious  and  scandalous  books,  amongst  others  IJastwick's 
"Answer  to  certain  Objections,"  "Litany  f.)r  tiic  especiall  I'se  of 
our  Kuglish  Prelates."  and  "  The  N'anity  and  Impiety  of  the  old  Lit- 
ai.y."  Lillnn'ue  refused  to  \y.\y  the  fees  for  entering  his  appearance 
bef.)re  the  Star  Chand)er,  and  to  answer  tiie  charges  under  oath, 
amongst  other  grounds  l)ecause  tlie  re(piirenient  was  a  violation  of  the 
Petition  of  Right.     For  this  he  was  sentenced  to  a  fine  of  live  hundred 


'  Hume's  History  of  Englanit,  eh.  Ix. 
^  Jlowell's    Statu  Trials,  vol.   iii,  p. 
lliJO;  vol.  Iv,  p.  1291 ;  vol.  v,  p.  410. 


«  Ibid.,  vol.  iv,  pp.  1283,  l^ai,  11!97. 
*  llilil.,  vol.  ill,  p.  1317. 
'-  Ibid. 


4U 


AIM'KNDIX.] 


.TOHV   LlLltl'RNE. 


47 


1)01111(15,  to  exposure  in  tho  pillory,  to  be  whipped  from  the  Fleet  to 
till'  ])illoiy,  siikI  then  to  iiiiprisonmeut  till  he  should  furuish  sureties  for 
his  good  l)cliavior.' 

IIo  witlistood  liis  punishment  bravely,  receiving  between  the  Fleet 
uiul  the  pillory  at  AVestininster  more  than  two  hundred  stripes  from  a 
whip  with  a  threefold  knotted  cord ;  while  he  repeated  texts  and  prophe- 
sied to  ^hf'  people.  On  his  arrival  he  was  offered  relief  from  the  pillory 
if  he  would  confess  his  fault,  whicli  he  refused.  When  in  the  pillory, 
stooping  with  his  neck  in  the  yoke  and  his  bare  head  exposed  to  the  sun, 
lie  held  fortii  to  the  crowd,  denying  the  charges  against  him,  jiistifyiug 
hiniHclf  for  his  refusal  to  take  the  illegsil  oath,  denouncing  the  bishops, 
aud  exhorting  his  hearers  to  be  faithful,  valiant  soldiers  in  Christ's 
army.  In  the  midst  of  his  discourse  he  threw  amongst  the  mob 
tluee  of  the  books  which  were  the  subject  of  his  accusation.  His 
mouth  was  at  last  stopped  by  a  gag;  Sut  when  it  was  removed,  as  ho 
took  his  head  out  of  flie  pillory,  he  cried:  "  I  am  more  of  a  conqueror 
through  him  that  hath  loved  mo.  ]\rfit  rex;"  and  on  his  return  to 
prison  published  an  account  of  liis  sufferings,  with  a  copy  of  his 
siKi'cli  signed  in  his  blood.'  The  .Star  Chamber  thereupon  voted 
that  ul!  persons  sentenceil  to  be  whipped  should  be  sen  relied  and  their 
hands  bound  before  their  punishment,  and 

" 'I'liat  the  said  John  Lilljurii  should  be  hud  alone,  u  li  iniiis  on  hi< 
liiiiids  aiul  leirs,  in  the  Wards  ol'  the  I'leet.  where  the  basest  and  meniK'^t 
sort  of  jirisoners  iire  used  to  lie  |uit  ;  and  Iliiit  the  Warden  of  tip  '  t 
take  especial  enre  to  hinder  the  resort  of  any  persons  whatsoever  unto  him. 
And  ]Kirlieii!iirIy,  that  he  ne  not  supplied  with  money  from  any  friend, 
and  that  he  take  speeiiil  notice  of  nil  letters,  writinuis,  and  books  ln'OUi;hl 
unto  him,  ami  seizes  iiiul  deliver  the  same  unto  their  lordships  ;  ;uid  take 
notice  fnmi  time  to  time,  who  they  are  tluit  resort  unto  the  saiil  prison  to 
visit  the  said  Lilburn,  or  to  speak  with  him,  and  inform  the  Hoard 
thereof.'" 

Ue  lay  thus  in  prison  for  nearly  three  j'ears,  kept  in  fetters  till 
his  l.fe  was  endangered  by  illness,  neiirly  starved  till  his  friends  pro- 
vided him  with  food  through  stratagem,  having  it  passed  to  hini  by  his 
felhn.  prisoners  through  holes  in  the  wnll  or  llo(n'  of  his  cell;  and  at 
times  so  lirutally  treated  by  his  gaolers  that  he  lost  the  use  of  two  lingers 
for  life."  In  llUD,  at  the  opening  of  the  Long  Tarliament.  he  jieli- 
tioned  for  his  liberty,  and  was  the  lirsl  prisoner  released  by  them.'" 


'  lluwcll's  State  Triiils,  vol.  iii,  pp. 
131fi-i;!J7. 

'Ibid.,  vol.  ill,  pp.  1328-1345. 


«  Iliiil.,  vol.  ill,  p.  1341. 

■'  Iliia.,  Vdl.  Iii,  pp.  1345,  1340,  135U 

1"  11/iil.,  vol.  iii,  p.  1342. 


48 


JOHN  LILBXTBNE. 


[CHAr.  1. 


Lilburne  took  an  active  part  in  arouBiug  the  people  to  aid  the  Parlia- 
ment aij;iiinst  tlie  King,  and  May  4,  1G41,  Charles  honored  him  lij'  liiw 
arraifjninent  for  high  treason,  before  the  House  of  Lords,  for  resisting 
soldiers  in  a  riot."  The  same  day,  the  House  of  Commons,  on  the  report 
of  n  Committee  whieh  hnd  investigated  the  subjeet,  resolved,  "That 
the  senlciiec  of  the  Star  Chamber  against  John  Lilburne  is  illegal,  and 
against  the  liberty  of  the  Bul)joct;  and  also  bloody,  cruel,  wicked,  bar- 
barous and  tyrannical";  that  reparation  ought  to  be  given  to  him; 
and  that  bis  cnse,  with  tiiose  of  Prynne,  Hastwick,  and  others,  should 
be  tnuisinitted  to  the  Lords. '^  Cliailes  soon  had  to  pay  attention  to 
matters  more  nearly  touching  himself  than  the  prosecution  of  Lilburne, 
who  was  imprisoned  for  some  time,  either  on  this  charge  or  for  some 
other  DlTense  against  the  Lords  ;  and,  on  his  discharge,  sued  the  lieuten- 
ant of  the  Tower  for  four  thousand  pounds  as  damages  for  false  impria- 
onment."  He  then  enlisted  in  the  parliamentary  army,  where  he  be- 
cauii-  a  lieutenant-colonel;"  was  captured  by  the  King's  forces;  and 
arrnigned  at  Oxford  for  treason.  He  was  allowed  a  trial  by  jury;  but 
before  the  iippointed  day.  Parliament,  at  his  wife's  instance,  passed  a 
law  for  reprisals  upon  royalist  or  malignant  prisoners,  which  stopped 
the  proceedings.'''  He  escaped  by  bribing  his  guard,  and  returned  to  the 
army,  meanwhile  continuing  his  occupation  as  a  immphleteer.  His 
speeeiies  and  writings  were  so  full  of  propositions  concerning  the  rights 
of  freeborn  ICnglisliinen,  tliat  he  obtained  the  nickname  of  Freeborn 
Jolni,  and  gained  great  po])ularity  among  the  soldiers  and  the  people." 
He  grounded  his  arguments  ui)on  four  authorities  in  tlie  order  given  :  Holy 
W(!rii)lure,  sound  reason,  IMagna  Ciiarta,  and  the  other  fundamentals, 
t'le  laws  of  the  hind  and  historical  precedents  ;  tiius  relegating  the  law  to 
a  subordinate  jurisdicliwii."  He  was  at  llrst  on  close  terms  with  Croni- 
ivell,  whom  he  aided  by  his  attacks  on  Parlian;ent."'  It  was  not  unnat- 
ural that  be  should  imvr  emne  into  contlict  with  his  military  superiors. 
Hewiis  threatened  with  htmging,  by  the  Earl  of  i\lanch.'ster,  for  insub- 
ordination through  excess  of  zeal  at  the  capture  of  Tickelt  Castle,  and 
^vas  oliliged  to  (piit  the  army  beeiuise  of  his  refusal  to  sign  the  Sol- 
emn lA'ague  and  Covenant."     I\Iean\vhile  he  petitioned  I'lirliumeut  for 


"  Howell's  St.ilo  Trinla,  vol.    ill,  p. 

n  Ibid. 

"■1  Ibiil.,  vol.  iv,  p.  1385. 
'« Il)i(l.,  vol.  iii,  p.  1.144. 
'■•  Ibid.,  vol.  Iii,  p.  1344 ;  vol.  iv,  pp. 
l-m,  1304. 


lVinocr.icy  in  Old  and  Nt'W  England,  p. 
4S. 

>'  Ibid.,  p.  49. 

"  Sco  Cliireiiddii's  Hintory  of  The 
l!i  licllion,  (piiited  in  Howell's  State 
TiiiilH,  vol.  iv,  p.  1410. 

'J  Horfjcnud,  Rise  of  Modern  Democ- 


'•  Uorgeaud,   The    Hise   of    Modern      racy  In  Old  and  New  Kngland,  p.  48. 


Ai'iMONnrx.] 


JOHN   LILnURNE. 


49 


reparation  for  his  iinprisonmcnt  by  the  Star  Chamber.*"  The  Lords 
pasHotl  an  ordinanoo  fjivinif  him  two  thousand  poiindH,  to  be  collected 
out  of  the  estates  of  two  members  of  the  Star  Chamber  and  the  deputy 
warden  of  the  Fleet.'''  ISIeanwhile  he  was  imprisoned  by  a  snap  vote  of 
the  House  of  Commons,  obtained,  in  the  absence  of  his  own  friends,  by 
Manchester  and  Bastwick,  with  whom  he  had  now  quarreled  in  a  tract 
against  lii-.n  and  his  clerical  associates,"'  While  in  Newgate,  Lilburue 
wrote  several  pamphlets,  in  which  he  maintained  the  sovereignty  of  the 
people  over  the  House  of  Commons.  "  Now,  for  any  man  to  imagine 
tli:it  tlie  shadow  or  representative  is  more  worthy  than  the  substance, 
or  that  the  House  of  Commons  is  more  valuable  and  considerable  than 
tiui  ISody  for  whom  they  serve,  is  all  one  as  if  they  should  alllrme  that 
an  A;j;ont  or  Ambassador  from  a  Prince  hath  the  same  or  more  authority 
liian  the  I'rinee  himselfe."  ^ 

He  was  the  principal  author  of  the  Agreement  of  the  People,  the  first 
written  Constitution  with  limits  to  the  power  of  a  national  legislature 
cvor  i)roposed  in  any  country.  It  was  submitti'd  by  the  agents  of  five 
ivgimcnts  of  horse  to  the  Commons  in  lo47,  with  the  general  approval 
of  the  army.  This  provided  for  the  dissolution  of  the  Long  Parliament 
in  the  following  year,  a  new  apportionment  of  members,  and  biennial 
elections.  The  legislative  power  was  granted  and  limited  as  fol- 
lows :  — 

"Tliat  the  power  of  this,  and  all  future  Representatives  of  this  Nation, 
is  inferior  only  to  theirs  who  ehuse  them,  and  doth  extend,  without  the 
consent  or  concurrenc  ;  of  any  other  person  or  persons,  to  the  enacting, 
altering,  and  repealing  of  Lawes  ;  to  the  ere('ting  and  abolishing  of  OIBces 
and  Courts  ;  to  the  ajipointing,  removing,  and  calling  to  account  Jlagis- 
tnites,  and  Ollicors  of  all  degrees  ;  to  the  making  AVar  and  Peace,  to 
llic>  treating  with  forraigne  States:  And  generally,  to  whatsoever  is  not 


•"  His  petitions  are  printed  In  Howell's 
Stiiio  Trials,  vol.  Ill,  pp.  134.'i-i;)46. 

2'  Ibid.,  vol.  ill,  p.  1:I59. 

-'"  Kn^land's  Ml.serle  and  Rcmedie, 
)ip.  1-4  (British  Mu.scuin,  E,  .102),  quoted 
liy  linrceaud,  pp.  4!),  50. 

-I  Eimliuul's  Miserle  and  Remcdie, 
101'),  pp.  1-4  (BrIlUh  Museum,  E,  .lO'i), 
iliuitcd  by  Borgeaud,  pp.  40,  60.  See 
al.so  A  PiLTOotistraiice  of  Many  Thou- 
siiridf,  CItlzt  v."  and  other  l'"rec-born 
l'ec)i)li)  of  England  to  their  owne  House  of 
(Iiiinmons,  occvsioned  through  the  Ille- 
gall  and  Barbarous  Impriaonnient  of 
that  famous  and  Worthy  Sufferer  for 


Ills  Countries  Frecdome  Lieutenant  Col. 
.lolui  Lllburne,  —  Wherein  their  just 
Demands  in  behalfe  of  themselves  and 
the  whole  Klngdomo  concerning  their 
I'ubllck  Safety,  Peace,  and  Ereedonie  is 
expressed  ;  calling  those  their  Conunl.s- 
sioncrs  in  Parliament  to  an  Account, 
to  how  they  (since  the  beginning  of 
their  Session  to  this  present)  have  dis- 
charged their  Duties  to  the  Universality 
of  the  People,  their  Sovereign  Lord,  from 
whom  their  Power  and  Strength  is 
derived,  aiui  by  whom  {ad  hene pkiritum) 
it  is  continued."  British  Museum,  U04, 
a  7,  cited  by  Borgeaud,  p.  51. 


60 


JOHN    LILUUHNE. 


[CUAI'.  r. 


I'xpressly,  or  implj'edly  reserved  by  the  represented  themselves.     AVliU-h 
are  lis  followcth, 

"1.  That  matters  of  lieligion,  and  the  wayes  of  God's  worship,  are  not 
at  all  intrusted  by  us  to  any  humane  power,  because  therein  wee  cannot 
remit  or  exceed  a  tittle  of  what  our  Consciences  dictate  to  be  the  mind  of 
(Jod,  without  wilful!  sinne:  neverthelesse  the  publike  way  of  inslructinj,' 
the  Nation  (so  it  be  not  compulsive)  is  referred  to  llicir  discretion. 

"  2.  That  the  matter  of  impressing  and  constraining  any  of  us  to  serve 
in  the  warres,  is  aj;ainst  our  frecdome;  and  tiierefore  we  do  not  allow  it 
in  our  Hepresentatives;  the  rather,  because  money  (the  sinews  of  war) 
l)einf;  alwayes  at  their  disi)osjill,  thcj'  can  never  want  numbers  of  men,  apt 
euouf^li  to  onjiaKO  in  any  Just  cause. 

" ,'!.  That  after  the  dissolution  of  this  present  I'arliament,  no  person 
be  at  any  time  (luestioned  for  anytliin^'  said  or  done,  in  reference  to  llie  hite 
publike  differences,  otherwise  tlian  in  execution  of  IJie  Judgments  of  the 
present  Representatives  or  House  of  Commons. 

"  4.  That  in  all  Laws  made,  or  to  be  made,  every  person  m.iy  be  bound 
alike,  and  that  no  Teiuirc,  Estate,  Charter,  l)e;;ree,  IJirlli  or  place  do  con- 
fer any  exemption  from  the  ordinary  Course  of  Legal!  proceedings,  where- 
unto  others  are  subjected. 

"  5.  That  as  tlic  Laws  ought  to  lie  equal!,  so  they  must  be  good,  and  not 
;  vidently  destructive  to  tlie  safety  and  well-being  of  the  people. 

'  Tliese  tilings  we  declare  to  be  our  native  Kights,  and  therefore  are 
agrc'd  and  resolved  to  maintain  tluMU  with  our  utmost  iiossibilities,  against 
ill!  opp.>sition  wliatsoever,  being  compelled  thereunto,  not  only  by  the  exam- 
ples of  c  ir  Ancestors,  whose  blood  was  often  spent  in  vain  for  the  recovery 
of  their  .'"reedonies,  suffering  themselves,  through  fraudulent  acconnnod.v 
tions,  t(  l)e  still  dehided  of  tlie  fruit  of  their  \'i('toriis,  l)ut  also  l>y  our  own 
wofull  .xperience,  who  having  long  expected,  and  dearlv  earned  the  estab- 
lishment of  these  certain  rules  of  Covernment  are  ye(  made  to  depend  for 
the  settlement  of  our  Peace  and  Freedome,  upon  him  that  intended  our 
bondage,  and  brought  a  eruell  AVarro  upon  us.'"* 

After  tlie  success  of  the  army  in  their  conflict  with  Parliament,  he 
W.18  released  from  prison  iu  1G47  or  1G18,  on  the  presentment  of  a 
petition  signed  by  over  seven  tlioiisand  of  his  friends,  who  also  prayed  tiiat 
the  ordinance  for  his  indemnity  be  passed."  The  establishment  of  a  pre- 
cedent in  relieving  him  from  tiie  estates  of  those  who  had  sentenced 
him  was  opposed  by  the  Speaker  and  otiiers  as  likely  to  react  subse- 
quently  upon   tlieinselves.'"     Wliile    tlie   ordinance  lay  on  the    table, 


'<  The  docunieiit  is  set  forth  at  length 
by  Horgeaud,  pp.  07-";).  Tiie  first  draft 
was  prepared  at  a  confcreiico  between 
representatives  of  llio  l/ovellers,  of  whom 
I.ilbiiriie  was  one,  tlio  officers,  the  iiido- 
pendents,  and    tlio  rarlianient.      (The 


Legal  Fundamental  Liberties  of  Kii)-- 
land,  by  Lilburne,  reprinted  in  tlio 
Clarke  I'apers,  vol.  ii,  p.  257.) 

"  Ilowell's  State  Trials,  vol.  ill,  p. 
1350. 

M  Ibid.,  p.  130X 


Arl'KNltlX.] 


.Tonx  TJLnunNE. 


51 


l':irli:uiu'iit  IkkI  disposetl  of  tiio  estates  of  two  of  the  delinquents  whom 
it  iiunieil.-'  Finally  an  ordinance  passed  the  lirst  reading  which  gave 
him  three  tlioiisand  pounds  out  of  the  estate  of  the  Lord  Keeper,  who 
tdok  pint  ill  hi.s  .sentence."'  This  was  opposed  by  tactics  not  unknown 
to  le^ishitiiros  of  the  present  day.  'I'he  ordinance  was  stolen  before  its 
second  reading.  During  Lilburne's  absence  in  search  of  a  copy,  after  bis 
frii'iuls  liiid  left  the  house,  his  enemies  procured  its  rejection;  and  the 
p:is.s;igi'  of  orders  giving  biin  three  hundred  pounds  in  cash  and  three 
tiiousMiid  pounds  more  to  be  settled  out  of  the  estates  of  new  delinquents 
ill  tlic  insurrections,  not  yet  sequestered.™  Finally  he  procured  the 
piissiigc  of  an  ordinance  allowiuir  him  the  same  sum  out  of  the  specified 
sequestered  estates,  but  hampered  with  such  conditions  that  he  obtained 
little  money  from  them.'"' 

Meanwhile,  he  took  part  as  agent  for  the  rank  and  file  in  the  con- 
ferences with  the  (ieueral  Council  of  ollieers  concerning  the  Agree- 
ment of  the  People,  where  he  distiiigui.slied  liimself  for  the  bitterness  of 
liis  language,  and  ciialleiiged  some  of  the  ollicera  to  a  duel."  The  con- 
ference failed,  and  the  troops  mutinied.  Although  the  first  mutiny  was 
sup])ressed,  and  one  of  the  ringleaders  shot,  Cromwell  was  forced  to 
yield,  and  a  new  Agreement  of  the  People,  first  drafted  by  Lilburnc,  waa 
presented  to  Parliament,  .lanuary  20,  KilH-KMD,  in  the  name  of  the 
army,  liy  the  (ieneral-in-Chief  and  his  council  of  ollieers. °'''  This  pro- 
vided concerning  the  legislative  |)ower  :  — 

"  Eighthly  :  That  the  Representatives  have,  and  shiU  be  understood  to 
have,  the  supreme  trust  in  order  to  the  preservation  and  government  of 
the  wliole  ;  and  tliat  tlieir  power  extend,  without  the  consent  or  concur- 
rence of  any  other  person  or  persons,  to  the  erecting  and  abolishing  of 
Courts  of  Justice  and  public  ollicos,  and  to  tlie  enacting,  altering,  repeal- 
ing and  declaring  of  laws,  and  the  highest  and  final  judgment,  concerning 
all  natural  or  civil  things,  but  not  concerninu;  things  spiritual  or  evangeli- 
cal. J'rovided  tliat,  even  in  things  natural  and  civil,  these  six  particulars 
next  following  are,  and  shall  be,  understood  to  be  exi'ejjted  and  reserved 
from  our  Kepreseiitntives,  viz.  1.  AVo  do  not  empower  them  to  impress 
or  constrain  any  person  to  serve  in  foreign  war,  either  by  sea  or  land,  nor  for 
any  military  service  within  the  kingdom  ;  save*  that  they  may  take  order 
for  the  forming,  training,  and  exercising  of  the  people  in  a  military  wa\ , 
to  be  in  readiness  for  resisting  of  foreign  invasions,  suppressing  of  sudilcu 


"  Howell's  Slate  Trials,  vol. 
13fiO. 

2"  Ibid,  pp.  13(M-1.5fi('>. 
'"'Ibid.,  pp.  13ii5-i;!(17. 
»>  Ibid.,  pp.  ia67-1368. 


Hi,  p.  a'  Ibid.,  vol.  iv,  p.  1.^08. 

"2  Horgcaud,  pp.  74-70.  I'or  the  de- 
bates concerning  tliis,  in  wbicli  I.ilburno 
took  part,  see  tho  Clarke  Papers. 


62 


JOHN  LILHTJRNE. 


[CIIAP.  r. 


insurrections,  or  for  assisting;  in  execution  of  the  laws;  and  may  take  order 
for  tlie  eniployinjc  and  conducting  of  them  for  tliose  ends;  provided,  tliat, 
even  in  such  cases,  none  l)e  compellable  to  go  out  of  the  county  he  lives 
hi,  if  he  procure  another  to  serve  in  his  room. 

"  2.  That,  after  the  time  herein  limited  for  the  commencement  of  the 
first  Ucprescntativo,  none  of  the  ])eople  may  be  at  any  time  questioned 
for  anything  said  or  done  in  relation  to  the  late  wars  or  public  differences, 
otherwise  than  in  execution  or  pursuance  of  the  determinations  of  the 
present  House  of  Commons,  against  such  as  have  adhered  to  the  King,  or 
his  interest,  against  the  people  ;  and  saving  that  accom|)lants  for  public 
moneys  received,  shall  remain  accountable  for  the  same.  3.  That  no 
securities  given,  or  to  be  given,  by  the  jjublic  faith  of  the  nation,  nor  any 
engagements  of  the  public  faith  for  satisfaction  of  debts  and  damages, 
shall  be  made  void  or  Invalid  by  the  next  or  any  future  Kepresentativcs; 
except  to  such  creditors  as  have,  or  shall  have,  justly  forfeited  the  same: 
and  saving,  that  the  next  Representative  may  confirm  or  make  null,  in 
part  or  in  whole,  all  gifts  of  lands,  moneys,  ollices,  or  otherwise,  made  by 
the  present  Parliament  to  any  member  or  attendant  of  either  House. 
4.  That,  in  any  laws  hereafter  to  be  made,  no  person,  by  virtue  of  any 
tenure,  grant,  charter,  patent,  degree  or  birth,  shall  be  privileged  from 
subjection  thereto,  or  from  being  bound  thereby,  as  well  as  others. 
C.  That  the  Representative  may  not  give  judgment  upon  any  man's  person 
or  estate,  where  no  law  hath  before  provided;  save  only  in  calling  to 
account  and  punishing  public  oflicers  for  abusing  or  failing  in  their  trust. 
6.  That  no  Kepresei;  .l!"e  may  in  anywise  render  up,  or  give,  or  take 
away,  any  of  the  foundations  of  common  right,  liberty,  and  safety  contained 
in  tills  Agreement,  nor  level  men's  estates,  destroy  property,  or  make  all 
things  common;  and  that,  in  all  matters  of  such  fundamental  concernment, 
there  shall  be  a  liberty  to  particular  members  of  the  said  Ueprcsentativcs 
to  enter  their  dissents  from  the  major  vote. 

"  Xinthly.  Concerning  religion,  we  agree  as  followeth: — 1.  It  is 
intended  lliat  the  Christian  Religion  be  held  forth  and  recommended  as 
the  pulilic  profession  in  tliis  nation,  which  we  desire  may,  bj*  the  grace  of 
Ciod,  be  reformed  to  the  greatest  purity  in  doctrine,  worship  and  discipline, 
according  to  the  AV'ord  of  God;  the  instructing  the  people  thereunto  in  a 
public  way,  so  it  be  not  compulsive;  as  also  the  maintaining  of  aL'e 
teachers  for  that  end,  and  for  the  confutation  or  discovering  of  heresy,  error, 
and  whatsoever  is  contrary  to  sound  doctrine,  is  allowed  to  be  provided 
for  by  our  Representatives;  the  maintenance  of  which  teachers  may  be 
out  of  a  public  treasury,  and,  we  desire,  not  by  tithes:  provided,  that 
Popery  or  Prelacy  be  not  held  forth  as  the  public  way  or  profession  in 
this  nation.  '2.  That,  to  the  jjublic  profession  so  held  forth,  none  be 
compelled  by  penalties  or  otherwise;  but  only  m.ay  be  endeavoured  to  be 
won  by  sound  doctrine,  and  the  example  of  a  good  conversation.  3.  That 
such  as  profess  faith  in  God  by  Jesus  Christ,  however  differing  iu  judgment 


Al'I'KN'DIX.] 


JOHN  LILBURKE. 


o;} 


from  tlie  doctrine,  worship  or  discipline  publicly  held  forth,  as  aforesaid, 
sliiill  not  be  restrained  from,  but  shall  be  protected  in,  the  profession  of 
tlii'ir  faith  and  exercise  of  religion,  according  to  their  consciences,  in  any 
place  exceiit  such  as  shall  be  set  apart  for  the  public  worship;  where  we 
])n)vide  not  for  thcni,  unless  they  have  leave,  so  as  they  aljuse  not  this 
lilicrly  to  the  civil  injury  of  others,  or  to  actual  disturbance  of  the  public 
peace  on  their  parts.  Nevertheless,  it  is  not  intcuded  to  be  hereby  pro- 
vided, that  this  liberty  shall  necessarily  extend  to  Popery  or  Prelacy. 
•1.  That  all  laws,  ordinances,  statutes,  and  clauses  in  any  law,  statute,  or 
ordinance  to  the  contrary  of  the  liberty  herein  |)rovided  for,  in  the  two 
particulars  next  preceding  concerning  religion,  be,  and  are  herel)y, 
repealed  and  made  void. 

"Tenthly.  It  is  agreed,  that  wliosoever  shall,  by  force  of  arms,  resist 
the  orders  of  the  next  or  any  future  Kepresentativc  (except  in  case  where 
such  Kepresentativc  shall  evidently  render  up,  or  give,  or  take  away  the 
foundations  of  connnon  riglit,  liberty,  and  safc^ty,  contained  in  this  Agree- 
ment), he  shall  forthwith,  after  his  or  their  such  resistance,  lose  the 
benefit  and  protection  of  the  laws,  and  shall  be  punishable  with  death,  as 
an  enemy  and  traitor  to  the  nation."  '' 

The  trial  of  the  King,  which  began  the  day  when  the  Agreement  was 
])rosontod,  alTorded  an  excuse  for  the  postponement  of  the  consideration 
of  tlie  latter  which  was  never  resumed."*  Cromwell  soon  acquired 
.sullicient  strength  to  abandon  it.  And  Lilburue  with  some  of  his  fellow 
agitators  was,  on  Marcii  :i!Sth,  KMll,  again  imprisoned  in  the  Tower, 
wliencc  he  sent  forth  a  hurricane  of  ])ainpli!ets  attacking  the  arbitrary 
liioceedings  of  the  Hump  Parliament.''^  A  third  Agreement  of  tlie 
People  sent  by  him  to  the  soldiers  contained  the  following  article  wliich 
was  subsequently  included  in  the  charges  of  treason  made  against 
iiim  :  — 

"  .Vnd  all  laws  made,  or  that  shall  be  made,  contrary  to  any  part  of  this 
Agreement  are  hereby  made  null  and  void."'" 

Another  mutiny  arose,  but  was  promptly  quelled,  and  discipline  in 
tile  army  finally  restored.  To  silence  Lilburue  and  the  rest  a  new  law 
of  treason  was  enacted  by  the  Rump  Parliament:  — 

"  That  if  any  person  shall  maliciously  or  advisedly  publish,  b)'  writing, 
liriiiting  or  openly  declaring  that  the  said  government  is  tyrannical, 
usurped,  or  unlawful  ;  or  that  the  Commons  in  Parliament  assembled  are 
iiiit  the  supreme  authority  of  this  nation,  or  shall  plot,  contrive  or  cn- 

"  Oardhier's  Documents  of  the  Puri-  "  An  Agreement  of  the  Free  I'coplo 

tun  Itevolutlon,  pp.  270-281.  of  Knglaml,  tendered  as  a  IVace  offurbig 

•1*  liorgcauii,  pp.  91,  02.  to  the  distressed  Nation.    London,  May 

'"'  Tlie  names  of  a  number  of  thorn  1,    1019.     ^Hritish  Museum,  u52   |-3j.) 

arc  given  by  Borgeaud.  Howell's  State  Trials,  vol.  Iv,  p.  1303. 


64 


.TOIiy   MLnURNE. 


[chat, 


<lciivour  to  stir  up  or  raise  force  agninst  the  present  government,  or  for 
the  perversion  or  alteration  of  tlie  same,  and  sliali  declare  the  same  by  any 
open  deed  ;  that  Ihen  every  snch  offence  shall  he  taken,  deemed,  and  ad- 
jndjred  by  the  authority  of  the  present  Parliament  to  be  High  Treason."" 

The  act  also  nuul"  it  treaHon  for  u  civilian  to  try  to  stir  up  n  mutiny 
in  the  army.  Notliing  daunted,  ]-ill)urne,  wliilo  in  Ihe  Tower  proceeded 
to  break  the  law  by  a  number  of  publications.  He  was  indicted  for 
hiijih  treason  under  the  statute  on  account  of  his  publieatiou  of  "A 
Salva  Libcrtate  "  ;  "An  Impeachment  of  IIi<;b  Treason  airainst  Oliver 
Cromwell  and  his  son-in-law  .loim  Jreton  M.sqrs.,  late  members  of  the 
late  forcibly  dissolved  House  of  Comnions,  presented  to  public  view  by 
lieut.  colonel  .lohn  Lilburne,  close  prisoner  in  the  Tower  of  London, 
for  his  real,  true,  and  zealous  affection  to  the  Liberties  of  this  nation"; 
"An  Outcry  of  the  Yonn<;-nicn  and  Apprentices  of  Lond(m,  or  an 
Inquisition  after  the  lost  fundamental  laws  and  liberties  of  England, 
directed  Aug.  2I>,  KM!),  in  an  Kpistle  to  the  private  Soldiers  of  the 
Army,  especially  all  those  that  signed  the  solemn  Engagement  lit 
Newmarket  Heath  the  .Oth  of  .lune,  101",  but  more  especially  the 
private  Soldiers  of  the  Generars  regiment  of  horse,  that  helped  to 
plunder  and  destroy  the  honest  and  true-licarted  Englishmen,  traitorously 
defeated  at  Burford,  the  l.')th  of  May,  Hi4i)";  "A  Preparative  to  an 
Hue  and  Cryafter  Sir  Arthur  Haslerig"  ;  and  "  The  legal  and  fundamental 
Liberties  of  tlie  People  of  England,  revived,  asserted  and  vindicated." 
The  first  of  these  books  he  had  given  to  the  lieutenant  of  the  Tower  as 
a  i)rotost  against  a  warrant  to  bring  him  before  the  Attorney-CJeueral. 
"The  Outcry  of  the  Apprentices"  he  had  given  to  some  sohliers.  In 
these  books  he  had  deliberately  violated  tiie  statute  by  speaking  of 
"the  pi, 'sent  tyrannical  and  arbitrary,  new  erected,  robbing  govern- 
ment";'* saying  on  the  first  page  of  one  :  — 

"I  have  fully,  both  by  law  and  reason,  undeniably  and  unan.swcrably 
proved  that  the  present  .luncto  sitting  at  AVestminster  are  no  Parliament 
at  all  in  any  sense,  either  upon  the  principles  of  law  or  reason,  but  are  a 
company  of  usurping  tyrants  and  destroyers  of  your  laws,  liberties, 
freedoms  and  proprieties,  .sitting  by  virtue  of  the  power  and  conquest  of  the 
sword."'  ^' 

lie  had  also  said  :  — 

"  (iranting  that  the  Parliament  hath  power  to  erect  a  couii  of  justice  to 
administer  the  law,  provided  that  the  judges  consist  of  persons  that  are 


87  Acts  of  May  14,  104!),  and  July  7, 
1B40;  Howell's  State  Trials,  vol.  iv,  pp. 
1347-13ol. 


"  Impeachment    of    High    Trcasou 
against  Oliver  Cromwell. 
»9  Ibid.,  p.  1. 


JOHN    LILIUJUNE. 


•');> 


Al'IMCNIirX.] 

not  iiicnibcrs  of  I'lirliament,  iind  pi-()viilo<l  the  power  tlioy  <ii\e  tlicin  be 
universal,  tliiit  U  to  say,  to  adiniiiisler  tlie  law  to  all  the  people  of  Kiigland 
imletiiiilely,  who  are  all  equally  born  free  alike,  ami  not  to  two  or  three 
particular  persons  solely  ;  the  last  of  whieli  for  llieni  to  do  is  unjust,  and 
altouellior  out  of  their  power."  *" 

Lilliiunc's  wife  and  faniilj*  petitioned  for  a  suspension  of  the  pro- 
cecdinsis,  that  they  niijiht  have  time  to  persuade  him  to  make  siilimis- 
sion.  lie  would,  however,  make  no  propositions,  except  first  to  submit 
the  ease  to  twelve  judf^es,  one  to  bo  Bclected  by  himself,  the  rest  by  his 
adversaries;  then  tluit  he  be  released  under  a  promise  to  emigrate  to 
the  West  Indies  within  six  months,  — 

"  Provided,  that  all  those  that  are  free  and  willinj,'  to  i^o  along  with  mc 
of  what  i|uality  soever,  may  hav(^  tree  liberty  at  their  pleasure  to  go,  and 
provided,  seeing  many  of  those  I  know  willing  to  undertake  the  journoj', 
are  maile  very  poor  bj-  reason  of  their  sulTerings  in  the  present  distrac- 
tions, may  have  all  such  monies  justly  ])ai(l  unto  them,  as  is  owing  them, 
either  upon  arrears,  for  faithful  service  already  <lone,  or  for  monies  lent  to 
the  public,  that  so  they  may  be  the  better  enabled  for  their  journej',  they 
engaged  thereupon  to  go  ;  and  provided,  that  other  that  are  willing  to  go, 
and  are  so  very  poor,  that  they  cannot  transplant  themselves,  may  have 
from  the  jmblic  some  reasonable  allowance  for  that  end,  this  being  the 
land  of  their  nativity,  where  by  the  law  of  nature,  they  niay  challenge  a 
sulisisteuce  ;  and  therefore  it  is  but  just,  seeing  their  company  and  prin- 
ciples are  a  burthen  and  trouble  .to  the  men  in  present  power,  that  they 
should  nuike  their  willingness  (for  ])eacc-sake),  able  to  transport  them- 
selves into  a  <lesart,  where,  with  industry,  and  the  blessing  of  (Jod  there- 
upon, they  may  expect  a  livelihood,  and  Ibis,  with  the  engagement  of  the 
prcscTit  power,  for  a  peaceable  proteclicvi  while  we  stay  here  in  England, 
and  for  (heir  assistance  for  a  reasonable  convoy  in  some  part  of  our  jour- 
ney. I  will  engage  iu  security,  I  will  not  act  against  their  power,  during 
my  slay  in  Kugland,  directly  or  indirectly  ;  but  for  me  to  engage  singly  to 
go  alone,  seeing  I  know  no  plantation  alreadj-  planted  ;  but  I  would  sooner 
elmsi',  to  be  cut  iu  pieces  iu  Kugland,  than  engage  to  go  to  it  :  therefore 
liarticularly  I  shall  not  engage,  without  terms  above  said,  come  life,  come 
(U'iitli.  to  which  I  shall  stand.''  ■" 

Finally,  moved  by  the  tears  and  importunities  of  his  wife,  he  peti- 
tioned :  — 

"That  my  Trial,  (so  suddenly  intended)  may  for  some  reasonable  lime 
be  suspended,  that  so  I  may  have  time  to  liear  and  consider  what  many  of 


gh    Trea.soa 


*>  I.llburne,TI]0  legal  and  fundamen- 
tal Liberties  of  the  People  of  Knglaiid  re- 
vived,   asserted   and    viudicatcd.      See 


also  Ills  I'icUwe  of  the  Council  of  State. 
•»  Iluwell's  Stute  Trials,  vol.   iv,  p. 
1126. 


5fi 


■lUIlN    LIUUJUNK. 


[•'IIAI'.   1. 


llicin  siiy  they  have  to  oUlt  by  wiiy  of  roaHoii  and  argumcnl,  to  pernuado 
iiic  to  what  at  present  my  uon.scieueo  is  not  convinced  of.  And  I  sliould 
likewise  be  desirous,  if  your  house  should  judj,'e  convenient,  that  some 
competent  number  of  {gentlemen  of  your  house  niij^ht  be  permitted  to 
del)ate  witli  me  those  particulars,  wherein  1  have  appeared  most  to  differ 
with  other  men's  judj^'ments  ;  whereby  possibly  rational  arguments  may 
be  80  strongly  urgi'd,  as  poradventure  may  give  such  satisfaction  as  may 
tend  to  the  reconciling  many  differences  and  distractions  ;  upon  the 
knowledge  of  the  acceptance  of  which,  during  all  that  time  of  suspension 
of  trial,  I  do  hereby  faithfully  promise  not  in  the  least  to  disturb  those 
that  shall  grant  me  this  favour,  being  not  so  apt  to  make  disturbance  as  is 
conceived."  " 

At  his  trial,  in  October,  1G40,  though  Imrely  thirty  years  of  age  and 
without  legal  training,  he  conducted  his  defense  single-handed  iiguinst 
bench  and  liar  in  a  most  masterly  nuinner.  The  court-room  was 
packed  with  his  friends,  who  inlltienced  the  jury  by  expressions  of 
their  sympathy,  so  loud  that  several  companies  of  soldiers  were 
brought  to  the  neighborhood  lo  keep  order.  He  so  continually  com- 
plained of  the  unfairness  of  the  prosecution,  that  he  put  both  the 
prosecutors  and  the  judges,  throughout  the  case,  upon  the  defensive. 
Ilis  arguments  in  favor  of  his  demand  that  counsel  should  be  allowed 
him  in  tlie  defense  of  a  crindniil  prosecution,  as  they  wouhl  have  been 
in  a  civil  action,  were  a  just  arraignment  of  tlio  barbarous  system  of 
criminal  jurisprudence  that  then  prevailed.  He  refused  to  admit  tlie 
publication  of  the  books,  although  fre(iuently  asked  about  the  facts, 
justifying  himself  against  llie  criticisms  of  his  prosecutors  for  this 
action  by  the  example  of  Christ  before  Pilate.  His  concluding  argu- 
ment consisted  of  technical  objections  to  the  proof  of  his  publication 
of  the  books,  combined  with  complaints  about  the  injustice  of  his 
treatment,  and  reference  to  liis  services  in  the  cause  of  religious  freedom. 
The  peroration  was  as  follows  :  — 

"I  have  aim  t  done,  Sir;  only  once  again  1  claim  (hat  as  my  right 
which  you  Iiave  iironiisod.  That  I  should  have  counsel  to  maltcr  of  law; 
and  if  you  give  me  Imt  your  own  promise,  which  is  my  undoubted  right  by 
your  own  law,  I  fear  not  for  my  life;  ]]ut  if  you  again  shall  <lcny  both 
these  legal  privileges,  I  shall  desire  my  jury  to  take  notice,  that  I  aver  you 
rob  me  of  the  benelit  of  the  law,  and  go  about  to  murder  ine,  without  and 
against  law:  and  therefore,  as  a  free-born  Englishman,  and  as  a  true 
Christian  that  now  stands  in  tlie  siglit  and  presence  of  (iod,with  an  upright 
Iieart  and  conscience,  and  witli  a  chearful  countenance,  cast  my  life,  and 
the  lives  of  all  the  honest  freemen  of  Englaiul,  into  the  hands  of  God,  and 

«  Howell's  State  Trials,  vol.  iv,  pp.  1432,  1433. 


AI'M'-NDIX.] 


.JOHN   LILIIUUNE. 


57 


his  ^'nuiimx  protection,  and  into  thu  caru  and  conscience  of  my  honest  jury 
and  fellow-citizens;  wlio  I  again  declare  by  the  law  of  Kiigland,  are  tho 
coiiMi'i'valors  and  sole  jiulges  of  my  life,  having  inherent  in  them  alone 
the  judicial  power  of  the  law,  as  well  as  fact  :  you  judges  that  sit  there 
lieiiig  no  more,  if  they  please,  Init  cypliiu's  to  pronounce  the  sentence,  or 
ilu'ir  clerks  to  say  Amen  to  tliem:  being  at  the  best  in  your  original,  but 
llie  N'orman  Conqneror's  intruders.  And  therefore,  you  gentlemen  of  the 
Jury  are  my  sole  Judges,  the  keepers  of  my  life,  at  whose  hands  the  Loril 
will  riMpiire  my  blood,  in  case  you  leave  any  part  of  my  Indictment  to  tho 
cruel  and  bloody  men.  And  therefore  I  desire  you  to  know  your  power, 
and  consider  3-our  duty  both  to  (Jod,  to  me,  to  your  own  selves,  and  to 
your  country:  And  the  gracious  assisting  Spirit  and  Presence  of  the  Lord 
(iod  Omnipotent,  the  (iovernor  of  lieaven  and  earth,  and  all  things  therein 
(•(intained,  go  along  with  you,  give  counsel  and  direct  you,  to  do  that  which 
is  just,  and  for  liis  glory." 

"The  people  with  a  loud  voice  cried,  .\men,  Amen,  and  gave  an  extra- 
ordinary great  hum  ;  which  made  the  ihi<lges  look  something  untowardiy 
about  them,  and  caused  major-general  Skippon  to  send  for  three  more  fresh 
companies  of  foot-soldiers."  " 

The  jury  brought  in  a  verdict  of  not  guilty,  which  was  groeteil  with 
jiopular  ai)p!ause  and  bonlires  in  the  streets.  Notwithstanding  this, 
he  was  returned  to  the  Tower  and  kept  there  imprisoned  ten  days 
longer,  till  he  was  released  upon  the  warrant  of  IJradsliaw.** 

Shortly  afterwards  Lilburne  was  elected  to  the  London  Common 
Council,  but  his  election  was  set  aside,  upon  which  lie  said;  "  I  have 
been  judged  by  man,  but  God  will  judge  between  Cromwell  and  me  ;  "  " 
then  for  a  while  dropped  politics  and  set  up  as  a  soap-boiler.*' 

For  two  years  Lilburne  continued  this  trade,  which  he  combined 
willi  tliat  of  a  promoter  of  private  claims  before  Parliament.  He 
tlieu  excited  the  hostility  of  Parliament  by  his  conduct  in  the  i)rosceution 
of  a  claim  for  his  uncle  George  Lilburne  and  Josiali  Primate  against 
Sir  Arthur  ILislerig,  about  a  colliery  in  the  County  of  Durham,  which 
they  claimed  Ilaslerig  had  taken  from  them  by  force.  The  Com- 
mittee reported  in  favor  of  Ilaslerig;  whereupon  the  House  voted 
acquitting  Ilaslerig,  determining  the  petition  to  be  false,  malicious 
and  scandalous,  directing  it  to  be  burnt  by  tlu;  common  hani;iiuin, 
fining  Primate  and  Col.  Lilburne  seven  thousand  pounds  each,  part  of 


*>  Howell's  State  Trials,  vol.  iv,  p. 
ie9'>. 

«  Ibid.,  p.  1400. 

*'  Gardiner's  Turitan  Commonwealth 
and  rroifctorate,  vol.  I,  p.  108. 

""The  project  of  the  wild  levelling 


rcpri-spiitntlve  is  at  an  end  since  John 
Lilburne  turned  off  the  trade  of  statc- 
niending  to  take  up  that  of  snap-boiliiit;  " 
Merc.  I'oliticus,  Juno  12,  1050,  quoted 
ill  Gardiner's  Coiiimnnwoallli  and  Pro- 
toctorate,  vol.  i,  p.  lUU,  notu  1. 


oS 


JOHN    I.ILHURNE. 


[OHAI'.  I. 


■which  wnM  to  be  paid  to  Ilaslerig,  and  providing  that  Lilburno  should 
lie  liii'iished,  and  depart  the  kingdom  within  thirty  days,  and  that 
in  on- .'  of  liis  return,  he  should  be  proceeded  against  as  a  felon, 
and  suffer  the  pains  of  death  accordingly.  When  summoned  to  the 
bar  of  the  House  to  receive  his  sentence  he  refused  to  kneel  and 
■was  accordingly  ordered  to  withdraw.  The  House  on  January  30th, 
lorjl,  passed  an  act  to  carry  out  its  judgment,  ■which,  after  allow- 
ing Lilburne  twenty  days  to  leave  the  country,  provided  that  in  case 
after  the  expiration  of  that  time  he  should  be  found  there,  "  the  said 
,Iohn  Lilliurne  shall  be,  and  is  hereby  adjudged  a  felon,  and  shall  be 
executed  as  a  felon  without  benefit  of  clergy.""  He  accordingly 
went  to  Holland,  but  two  years  later  returned  to  England  to  contest 
the  validity  of  the  law,  when  he  was  committed  to  Newgate  and 
brought  to  trial.  He  tiled  several  exceptions  to  the  indictment  upon 
the  grounds  that  the  description  of  the  Parliament  in  the  indictment 
was  informal,  that  the  act  did  not  coniorm  to  the  judgment  uiiou  him, 
and  that  the  indictment  did  not  set  forth  with  sufllcient  specification 
that  he  was  the  .John  Lilburne  described  in  the  act.  The  most  interest- 
ing exception  was,  however,  that  the  act  was  void  as  contrary  to  the 
fundamental  principles  of  law.     This  was  as  follows  :  — 

"  Exception  2.  The  said  Tndictincnt  is  grouiuled  upon  the  foie-rocitefl 
act.  inlitled,  '  An  Act  for  tlu>  Kxofution  of  a  Judgment  given  in  Piirlia- 
ment  iiuainst  Lieut,  col.  John  Lillnirno  '  ;  and  so  relates  only  to  some  judg- 
ment supposed  to  be  given  in  i)arliampnt  against  the  said  It.  col.  John 
Lilburne  ;  and  if  no  such  judgment  were  Riven,  the  act  were  void,  and  the 
judgnienl  also.  Now  it  doth  not  appear  that  any  judgment,  for  ri>y  crime 
whatscirver,  was  given  in  parliament  against  tlic  said  Lieut,  col.  John 
Lilbu,...'. 

"  1.  JJefore  any  judgment  can  be  given  in  law  against  any  Englishman, 
fo""  any  crime,  there  must  be  either  an  Indictment,  presentment,  or  some 
infoniintion  or  accusation,  against  him,  •)  that  court  tliat  judgeth  him,  for 
Monii'  (lime  supposed  to  be  comniittod  by  liini.  2.  Tlie  jiartj'  accused 
must  citlier  appear  lieforo  lliat  court,  or  b(- out-lawed  for  not  appearing. 
3.  If  tlie  iiarty  appears,  he  must  either  confess  the  crimes  or  misdemean- 
or.s  whereof  h  ;  is  accused,  or  else  jilead  to  the  indictment,  presentment, 
or  iuldi'matidii,  or  accusation  airaiiist  him,  and  cmne  to  trial  thereupi  ■'. 
And  lis  some  of  these  oujilit  in  linv  to  precede  a  judgment  against  any  Eng- 
lisliiiiaii,  so  also  some  of  tliese  at'orc-nicnlioned  proceedings,  in  order  to  a 
lawful  judgment,  ouglil  to  be  entered  upon  such  record,  wherein  any  such 
judgment  is  entered  ;  and  unless  it  doth  appear  upon  the  record,  wherein 
any  judgment  is  entered  against  any  Knglishman  for  any  crime,  that  some 


47  Howell's  State  Trials,  vol.  v,  pp.  407-400. 


ai'im;n!)IX.] 


JOHN   LILBUIINE. 


.09 


such  proceeding  as  abovesaul,  hath  been  made  before  the  judgment  passed 
:i:_Miiist  him,  tlic  judgment  is  to  be  liolden  for  error eous  and  void,  aivl 
iiii^'lit  so  to  1)0  reputed.  Xow  it  doth  not  appear  cither  by  tlie  s:iid  pie- 
lomi;^!  act,  as  it  is  recited  in  tlie  indictment,  nor  by  an/  record  of  the  sup- 
piiscd  judgment  produced,  nor  any  otiierwise,  that  tliero  was  any  indict- 
iiicnl,  presentment,  or  information  to  the  parliament  of  tlie  Comnionweallh 
of  England  against  the  said  Lieut,  col.  John  Lilburne  ;  or  even  if  there 
were,  it  doth  not  apjiear,  that  he  ever  appeared  to  the  same,  nor  that  he 
was  ever  outlawed  for  not  appearing  ;  neither  doth  any  i)leading  by  the 
siiiil  licut.  col.  .lolin  Lilburne  to  any  such  indictment  or  information  appear, 
Miir  any  trial  of  him  for  the  same.  And  therefore  if  any  such  pretended 
judgment  be  entered,  as  the  said  supposed  act,  and  the  Indictment  of  John 
l.illiurnn,  ])risouer  at  the  bar,  thereupon,  doth  relate  unto,  the  same  is 
rinimnus  and  void  in  law,  and  by  consequence  the  said  indictment  is 
v(ii(l."« 

In  his  clo.sing  speech  to  the  jury,  he  took  the  position  that  tlie  act  was 
void  because  unconstitutional ;  and  up,  n  that  "round  iio  was  aetpiitted,  as 
appears  from  the  subsecpient  examination  of  the  jurors  before  the  Council 
<»f  State,  where  several  substantially  admitted  this,  by  saying  that  they 
voted  for  accpiittal  because  they  were  judges  of  the  law  aa  well  as 
the  facts,  altiioiigh  two  or  three  claimed  tiiat  their  verdict  was  on 
the  ground  of  insullicieut  proof  that  Le  was  the  Ulbunie  described 
in  the  statute." 

"Concerning  the  act  whereupon  he  was  iiidicled,  this  he  said:  It  was 
a  lye  and  a  fidsehood:  an  act  that  hath  no  reason  in  it,  no  law  for  it  ;  it 
was  done  as  Pharoah  dirt;  Resolved  upon  the  question,  that  all  the  male 
eliildren  should  be  murdered.  That  if  he  died  ui)oii  this  Act,  he  died 
upiiu  (he  same  score  that  Abel  did,  being  murdered  by  Cain  That  the 
act  was  a  voi<l  act,  a  ])riiited  thing,  there  licing  no  luie  junictili..  or  clause 
in  iLirronudedon  the  law  of  England,  and  that  it  was  an  unjust,  unrighteous, 
and  treacherous  act,  and  that  he  doubted  not  to  shatter  that  act  in 
pieces.''  *'■• 

■■  .\s  for  all  parliaments  ii.  :;cneral,  he  said  parliaments  were  a  dcleg.ated 
piiwci-,  and  ought  to  give  a  reason  of  all  they  do;  ai  d  that  it  was  not  in 
tlu'ir  powir  (as  he  had  proved  in  bis  ple.i  at  large,  b  fore  the  Lord  t!hief 
•Justice  UoUs  and  Mr.  Justice  Uacon,  May  18, 1047;)  nor  liad  they  the  le.-ist 
jurisdiction,  to  sentence  him,  or  any  of  the  least  free-born  Englishman; 
unless  it  be  their  own  nHMubers.  That  all  crimes  wlia' ,  vcr  were  to  be 
heard,  determined,  and  judgi'd  at  the  Common-law,  .md  no  wlicre  else. 
.\cts  iif  Attainder  were  iiiil  lawful." 

"  For  the  Jury,  he  calle(l  them  bis  hououralile  Jury,  and  said  they  were 


*'  Howell's  State  Trials,  vol.  v,  pp. 
4:;s-4;ii». 


<»ll)id.,  pp.  440-450. 
5"  Iliiil.,  p.  443. 


60 


JOHN   LILBURNB. 


[chap. 


the  Keepers  of  the  Liberties  of  England ;  and  will  make  it  appear  that  the 
Jury  are  tlie  Judges  of  the  Law,  as  well  as  of  tlie  Fact. 

"Moreover  ho  charged  them  to  consider,  Whether  if  I  die  on  the 
Monday,  the  parliament  on  Tuesday  may  not  pass  such  a  sentence  against 
every  one  of  you  twelve;  and  upon  your  wives  and  children,  and  all  your 
relations  ;  and  then  upon  the  rest  of  the  city,  and  then  upon  the  whole 
county  of  Middlesex,  and  then  upon  Hertfordshire,  and  so  by  degrees 
there  be  no  people  to  inhabit  England,  but  themselves  ?  "  " 

This  is  the  first  case  in  the  history  of  jurisprudence,  where  an  act 
of  a  national  IcfJtislature  was  disregarded  as  unconstitutional. 

A  large  gathering  of  po(H)le  was  present  at  the  trial  resolved  to 
rescue  him  by  force  if  he  were  convicted,  lie  sooins  to  have  been 
troubled  no  further,  and  it  is  said  that  Oliver  Cromwell,  who,  though 
publicly  his  enemy,  had  reasons  for  not  pushing  him  too  far,  subsequently 
paid  him  priva*'  y  a  pension  equivaknt  to  the  pay  of  a  lieutenant- 
colonel."  He  died  in  1()57,  loss  than  forty  years  of  age,  but  so  long 
as  civil  liberty  is  preserved  the  uanio  of  John  Lilburne  should  not  be 
forgotten. 


61  HoweU'a  State  Trials,   voL  v,  pp. 
443-444. 


5'^  Oldinixon  vol.  ii,  p.  410. 


CHAPTER   II. 

NATURE    OF    THE    CONSTITUTION    AXD    THE    PREAMBLE. 
NULLIITCATIOX,   SECESSION   AND   RECONSTRUCTION. 


g  11.  N.aturc  of  the  Constitution  of  tlie  United  States. 

Thk  Unitkd  8tatks  are  a  nation.  Tl)e  Union  is  not  a  league, 
and  cannot  be  dissolved  except  by  .^  revolution.  These  are  prin- 
ciples which  have  been  established  by  tiie  adjudications  of  tlie 
courts,  the  action  of  Congress  and  the  executive,  tlie  acquiescence 
of  the  States,  and  the  arbitrament  of  war.  The  question  lies  at 
the  foundation  of  the  government,  ami  on  it  tlie  people  of  the 
country  were  for  three-quarters  of  a  century  divideJ.  Now  that 
a  generation  is  in  power  wliicli  accepts  the  decision,  whether  sound 
or  erroneous,  as  final,  the  arguments  on  cither  side  deserve  a  dis- 
passionate consideration. 

Those  iu  favor  of  the  legal  right  of  secession  are  as  follows :  It 
is  an  axiom  of  political  science  that  no  law  can  bind  a  sovereign  ; 
for  a  sovereign  is  above  all  law.  The  Articles  of  Confederation 
were  a  league  between  sovereign  States.  Tiiose  sovcieign  States 
formed  tlie  (^oustitulioii.  It  was  drafted  by  tlu^ir  delegates  and 
ratified  by  them  separately.  Tiie  riglit  to  wiliidraw  from  the 
Union,  it  has  been  cliiinied.  was  reserved  liy  Js'ew  York  and  Vir- 
Ljiiiia  in  their  ratitications.  It  was  called  by  its  makers  and 
slatcsnien,  contemporary  with  its  adoption,  as  well  as  since,  a 
iDnijiact,  a  confederacy,  and  a  federal  government.  T!ie  United 
States  have  the  same  name  that  was  apfjlied  to  them  inider  the 
Articles  of  Confederatiiui.  There  i.s  nothing  in  tlie  Constitution 
tr)  show  that  it  is  a  different  bond.  No  clause  of  tliat  instnuiient 
gives  power  to  coerce  a  State.  Such  power  was  suggesti!d  in  the 
I''cderal  Convention,  but  rejected  by  a  large  majority.  The  States 
are  expressly  reeogni/.ed  in  Hint  instrument.  Should  they  refii.se 
to  act,  for  example,  by  biiling  to  elect  Senators,  the  Union  would 
cease  to  exist.     It  must  tiien,  it  is  contended,  be  a  league  or  com- 

61 


62 


NATURK    tJF    COX.STITUTIOX. 


[CIIAP 


[lait,  ,111(1  notliiiig  nioi'u.  Now  a  coinpacl,  even  between  iiiilivid- 
nulis,  eeiises  to  be  binding  on  the  breaeh  of  one  of  its  conditions. 
Intenuvtionul  law  justiiies  the  di.ssohitiou  of  a  league  for  a  similar 
reason.  In  the  case  of  individuals  the  courts  will  determine 
whether  on  one  side  a  breach  has  been  made  which  relieves  the 
other  from  the  stipulations  upon  its  jjart.  There  is  no  court  with 
power  to  adjudicate  between  the  claims  of  nations.  Each  inde- 
pendent State  must  be  its  own  judge  in  such  a  case  ;  and  when  one 
determiiu's  tliat  there  is  cause  sullicient  to  itself  for  the  dissolution 
of  a  league  or  treaty  of  alliance,  the  league  is  tiiercby  dissolved, 
in  view  of  international  law  as  well  as  in  fact,  and  the  aggrieved 
party  has  no  remedy  but  war.  If  the  Constitution  is  a  league,  it 
is  no  longer  binding  upon  any  one  of  che  States  which  has  deter- 
mined to  withdraw  from  it.  The  citizens  of  that  State  must,  it  is 
said,  obey  the  will  of  the  State  in  that  respect,  and  in  waging  war 
under  the  State  banner  against  the  United  States,  they  are  not 
guilty  of  treason. 

The  advocates  of  the  prevailing  view  have  denied  that  the 
States  were  sovereign  before  the  adoption  of  the  Constitution. 
They  have  denied  that  the  States  formed  the  Constitution,  insist- 
ing that  its  preamble  shows  that  it  was  adopted,  not  by  the  States, 
but  by  the  people  of  the  country  at  large,  whose  votes  were  taken 
in  the  States  of  their  respective  residence  for  convenience,  without 
any  legal  signilicatiou.  Even  if  the  Constitution  was  formed  by 
some  of  tlie  States,  they  had  the  power  to  so  merge  themselves 
together  in  one  nation  as  to  make  subsequent  separation  illegal. 
Tlie  proceedings  of  tlie  Federal  Convention,  it  is  claimed,  show 
that  it  was  the  intention  of  its  membei's  to  establish  a  national 
form  of  government,  and  not  a  league.  The  fact  that  tlie  docu- 
ment whiih  they  constructed  terms  itself  a  constitution  and  not  a 
league,  its  provisions  in  other  respects  and  the  form  of  government 
which  it  creates  operating  directly  upon  the  people,  and  not  upon 
the  States,  with  direct  and  pojiular  representation  in  the  lower 
house  of  Congress,  and  with  a  court  having  jiirisdietion  over 
States  to  act  as  a  coiumon  umpire,  all  sup[)()rt  the  constrnction 
that  it  was  its  intention  to  establish  an  indissoluble  union  of 
indestructiiile  States.  The  subsequent  decisions  of  the  Supreme 
Court  of  tiie  I'nited  States,  the  action  of  the  other  departments 


'iiAr.  :;. 


^^■^■] 


OKIUINAL   SOVEKEIGNTV   OK   THK   STATICS. 


(13 


of  lliu  fTovernment,  the  acquiescence  of  the  States,  and  the  result 
of  tin;  Civil  War,  have  so  firmly  established  tliis  position,  tiiat 
its  (lisciissiou  now  is  less  practical  than  academic.  These  con- 
tentions, however,  will  be  considered  separately. 

§  12.   Sovereignty  of  the  States  before  the  Federal 
Constitution. 

Before  the  adoption  of  the  Constitution,  llie  several  States  wJio 
were  parties  to  the  Confederation  \\ eie  independent  and  sovereign. 
This  theory,  although  disputed  by  liigii  authority,  suenis  to  bo 
established.  Prior  to  the  outbreak  of  the  Revolution,  the  colonies 
were  separate,  connected  with  each  other  only  through  their  com- 
mon drpendence  upon  Cheat  Britain,  differing  in  the  race  of  their 
inhabitants,  the  character  of  tlieir  occupations,  and  the  nature  of 
tlicir  religion.  When  tlie  dilliculties  arose  with  Great  Britain,  at 
tile  outbreak  of  tlie  {{evolutionary  War,  they  sent  delegates 
to  the  Continental  Congress,  which  superintended  tlie  conduct  of 
tlie  war,  and  which  passed  and  promulgated  tlie  Declaration  of 
Independence.  The  extent  of  the  powers  of  the  Continental 
('ongress,  whicli  were  neither  limited  nor  authorized  by  any 
charter,  written  law,  or  constitution,  depended  upon  the  neces- 
sity of  tlie  respective  cases  which  arose ;  and  it  was  in  fact  a 
provisional  government.'  Mad  it  continued  tlius  until  tlie  adop- 
tion of  tlie  Federal  Constitution,  it  might  well  have  been  claimed 
tliat  tiie  sovereignty  Wiis  iu  its  constituents  at  large,  and  tliat  the 
several  States  were  never  sovereign  or  independent.'''  Still,  there, 
llie  members  voted  by  States,  and  not  as  individual^,  and  were 
subject  to  be  recalled  by  their  coiistiluencit'S  at  any  time ;  and  the 
interference  with  local  affairs  was  iiiiule  usually  in  tlie  form  of 
reconunendations  rather  than  orders.-'     When,  however,  the  .Articles 


§  12.  1  Sc>(>  V.Milinllow  I'.  Doaiic'-i 
AdinlMiHtnitdi-H,  U  Oallurt,  HI,  HI,  !)1, 
SKI,  !l I,  HI. 

'•^  At  till'  ()|)i'riiMK  "f  til''  t'lintiniMital 
('i)MKi'i>sH  ill  1771,  l'alri''lc  Henry  wiiil 
tliiil  the  iMiloiiial  (^dviTiitnciits  were 
lit  un  end,  Aiiiericii  wiih  thrown  into 
one  inaHH  ami  in  a  ntalo  of  nature, 
and  thai  eon  ■eijuently  the  people 
ought  to  lie  eousideri'd  us  entitled  to 


li'presentatlon  in  aeeordiinee  with 
tlieir  iiimilier.-f.  Hin  inolion.  Iiiw- 
evcr,  tailed,  (.folin  AdaiM'<,  Wi.rUs, 
vol.  ii,  pp.  It(iri-{|77;  Curtis'  Cnnsiini- 
lioiial  History,  vol.  i,  p|i.  ',),  ID.) 
Snprii.  §4. 

•'  The  Conl  inenlal  Couf^i  .ss  "i/inY'/cif 
New  York  to  arm  aud  train  her  mili- 
lia."  l)aiii''rt  Abridgomeut,  vol.  Ix, 
Appendix,  p.  31). 


64 


NATURE  OF  CONSTITUTION. 


[chap.  II. 


of  Confederation  were    ratified,   the   sovereignty  of  the   several 
States  was  distinctly  recognized.     They  provide  expressly  that 

"  Each  State  retains  its  sovereignty,  freedom  and  independence,  and 
every  power,  jurisdiction  and  right  which  is  not  by  this  Confederation 
expressly  delegated  to  the  United  States  in  Congress  assembled."  ■* 

Tlius  we  find  in  the  first  formal  instrnnient  which  hound  the 
States  together,  an  express  recognition  of  their  sovereignty  and 
independence. 

So,  tlio  bill  of  rights  in  the  fii-st  Constitution  of  Massachu- 
setts :  — 

"Tlio  people  of  this  Commonwealth  have  the  sole  and  exclusive 
right  of  governing  tliemselves  as  a  free,  sovereign  and  independent 
State,  and  do,  and  forever  hereafter  shall,  exercise  and  enjoy  every 
power,  jurisdiction,  and  riglil  which  is  not,  or  may  not  hereafter  be, 
by  them  expressly  delegated  to  the  United  States  of  America  in  Con- 
gress assembled."  ' 

The  treaties  made  by  the  United  States  with  other  nations, 
prior  to  the  adoption  of  the  Federal  Constitution,  also  recognize 
either  expressly  c)r  ])y  implication,  the  independence  and  sover- 
cii^nty  of  the  several  States.  The  Treaty  of  Amity  and  Commerce 
with  France  in  1778,  recites  in  its  preamble  that  it  was  made 
between  - — 


*  Articles  of  Confodcratlon,  II. 
"Th(?  woril  Hovrrcii/n,  tin  anplii-d  to 
:i,  KIrtte,  w.'iH  llrsl  ailoptcil  in  tin"  t'oii- 
I'c'di'ralioii,  in  tlic  2fl  nrtido,  iiiiil  di.s- 
«'Oiitinu('d  witli  it,  ox(M>|it  in  Ni'w 
Uainpsliiro.  The  Constiliil  ion  of  New 
Haiiipsliiiv,  ndoptcd  rdiniary,  1792, 
is  till'  wnuc  HH  till'  wild  1st  urticlc,  llli 
Ki'ction,  of  the  Massachusetts  Bill  ot 
lli^?ht^-."  (  Dane  s  Alji'idgcincnt,  vol. 
ix,  .\iipendlx   p.  20.) 

'■MiiFsachiisotts  Constitution  of 
17K0,  r.irt  I.  Aiticloiv.  Tlied('!(>i,'at<'s 
to  the  State  conventions  of  latilication 
received  coininissioiiH  or  credentials 
from  their  respective  (jovernors; 
which,  in  the  caKO  of  GeorRla,  con- 
taincil  tlin  recital,  "Tin'  Slate  of 
<ri'<)rgiu  by  the  grace  of  God,  free, 
aov<!rclgn,     and     ludepeuUeut,"    and 


conr'luded,  "In  the  year  of  our  Lord 
1777,  and  of  our  sovereignty  and  Indc- 
jiendence  the  eleventli."  In  Now  Jer- 
sey, "In  the  year  of  our  Lord  1786, 
and  of  our  sovereignly  and  independ- 
ei,c(Mh(M'lev(>nth."  InN<!wYork,  "In 
tlie  ol(-vontli  year  of  tlie  independence 
of  tli(!  said  Slate."  In  North  Carolina, 
"  In  the  el(>venth  year  of  our  inde- 
pendence, A.D.  17K7."  In  Massachu- 
setts, "In  the  eleventh  year  of  the 
independence  of  the  United  Stales  of 
America."  In  South  Carolina,  "In 
the  year  of  our  Lord  1787,  and  of  the 
sovcrei;inty  and  inde[)endence  of  the 
Unitcil  States  of  America  the  elev- 
(Mitli."  'Stephens,  Constitutional  View 
of  tlie  War  het\v(!en  the  States,  vol.  i, 
pp.  'Jt)-115.) 


v-^-] 


OnifilXAL   SOVEIIKICXTV    f)F   THE   STATES. 


65 


"  Tlic  Jlost  Christian  Kiiif^  and  the  thirteen  United  States  of  North 
America,  to  wit,  Xew  Hampshire,  JIassachiisetts  I5ay,  Ithode  Ishiud, 
Connecticut,  New  York,  New  Jersey,  rcunsylvania,  Delaware,  Mary- 
hmd,  Virginia,  North  Carolina,  South  Carolina,  and  Georgia."" 

It  speaks  synonymously  of  "The  United  States  of  America," 
and  of  "  the  said  States  ; "' "  and  of  "  the  thirteen  United  States."  * 
It  refers  to  the  ports,  havens,  roads,  countries,  islands,  cities,  towns, 
suhjects,  people  and  inhabitants;  and  the  benefit,  conveniency  and 
safety  "  of  the  said  United  States  and  each  of  them,"  and  "  of  the 
said  United  States  or  any  of  them."  "  The  plenipotentiaries  on  the 
part  of  the  United  States  who  signed  the  same  are  set  forth  in 
the  preamble  as  :  • 

"  The  United  States,  on  their  part,  having  fully  impowered  Benjamin 
Franklin,  Deputy  from  the  State  of  Pennsylvania  to  the  General  Con- 
gress, and  President  of  the  Convention  of  said  State,  Silas  Deaue,  late 
Deputy  from  the  State  of  Connecticut,  to  the  said  Congress,  and  Arthur 
Leo,  Councellor  at  Law."  '" 

The  Treaty  of  Alliance  with  France,  signed  and  ratified  on  the 
same  date,  similarly  names  the  separate  States  as  parties  to  the 
same :  — 

"  The  Most  Christian  King  and  the  United  States  of  North  America, 
to  wit :  New  Hampshire,  Massachusetts  Hay,  Rhode  Island,  Connec- 
ticut, New  York,  New  Jersey,  Pennsylvania,  Delaware,  ^Maryland, 
\'irginia,  Nortli  Carolina,  South  Carolina,  and  Georgia;  "  " 

and  the  plenipotentiaries  are  similarly  described.'^  Similar  lan- 
guage is  found  in  the  contract  between  the  United  States  and  the 
King  of  France  in  1782,  in  regard  to  the  payment  of  the  French 


'■  t;.  S.  K.  S.  relating  to  District  of 
(lohiniliia  and  Post  Iloads,  and  Public 
Treaties,  p.  203. 

■  Iliid.,  Article  I,  p.  204. 

»  Il)iil.,  Article  XXX,  p.  212. 

''  Iliid.,  Article  III,  IV,  VI,  VIII,  XI, 
ri'.  liOt,  205,  206,  207.  In  two  articles, 
liii\vi!ver,  arc  references  to  the  United 
Sliitcs  us  an  cntKy.  Article  XX,  "  For 
tlie  ijctter  promoting  of  commerce  on 
liotli  sides,  it  is  agreed  that  if  a  war 
Klmll  breal:  out  hotwoen  tlio  snid  two 
nulious,"  etc.     Artlulo  XXII :  "  It  shall 


not  bo  lawful  for  any  foreiijn  priva- 
teers, not  belon^ins  to  subjects  of  the 
Most  Christian  King  nor  citizens  of 
the  said  United  States,  who  have  com- 
missions from  any  oilier  Prince  or  State 
in  enmity  with  either  nation,  to  fiC 
their  slups  in  tlie  ports  of  eitlier  the 
one  or  the  other  of  tlio  aforesaid  par- 
ties," etc.     Uiid.  p.  209. 

'd  Ibid.,  Preamble,  p.  201. 

"  Ibid.,  p.  201. 

n  Ibid.,  p.  203. 


66 


NATVItK   OK   COXSTrTUTION. 


[cnAi'.  II. 


loan."  The  contract  between  the  King  and  the  United  Stales, 
upon  tiic  same  subject,  in  1783,  recognizes  the  independence  of 
the  thirteen  United  States  of  North  America,  and  refers  througii- 
out  to  tiiose  tliirtcen  States.'* 


"  U.  S.  R.  S.  ri'latiiiK'  to  District  of 
Columbia  ami  Tost  Ilouds,  aud  Public 
TraitioH,  pp.  214  217. 

I*  "  A  coiiti-act  bctwncu  His  Most 
Cliristian  Majesty  and  tlio  llilrtnnn 
United  Stales  of  North  America,  on- 
lerod  into  at  Versailles,  on  the  25th  of 
February,  17«;i. 

"  The  re-estubllshed  peace  between 
the  belligerent  Powers,  the  a?lvanta- 
ges  of  u  free  conimeree  to  all  jiurls  of 
tlio  globe,  and  the  ludependenco  of  the 
thirteen  United  States  of  North  Ame- 
rica, aclinowledged  and  founded  on  a 
solid  and  houoralde  basis,  rendered  it 
probalile  that  the  said  States  would  bo 
In  a  condition  to  i)rovido  hereafter  for 
their  necessities  by  means  of  the  ro- 
Hourees  within  themselves  without  1)0- 
ing  compelled  to  Implore  the  contiuu- 
ution  of  the  succours  which  tlie  King 
has  so  llborally  granted  during  the 
war;  but  the  Slinlsler  Plenipotentiary 
of  tho  said  United  States  to  His  Maj- 
esty, having  represented  to  him  the 
e.xhausted  state  to  which  they  had 
boon  reduced  by  a  long  and  disastrous 
war,  His  Majesty  has  condescended  to 
take  into  consideration  tho  rc<|uest 
made  by  tho  aforesaid  Minister,  in  tho 
Dunic  of  tho  Congress  of  tho  said  States, 
for  a  uew  advance  of  money  to  answer 
numerous  purposes  of  urgent  and  in- 
dispensablo  expenses  in  tho  course  of 
tho  present  year;  His  Majesty  has 
In  couse(pience  determined,  notwith- 
standing the  no  less  pressing  necessi- 
ties of  his  own  service,  to  grant  to  Con- 
gress a  new  pecuniary  ae.si8tance, 
which  ho  has  fl.xed  at  the  sum  of  si.x 
millions  livres  tournois,  under  tho  title 
of  loan,  and  under  the  guaranty  of  tho 
wholi'  tldrteen  United  States,  whieii 
the  Minister  of  Congress  has  declared 


his  aeeeptaneo  of,  with  the  llvelii'st 
acknowledgments,  in  the  name  of  the 
said  States."     (Ibid.,  p.  217.) 

In  Article  II:  "His  Majesty  lure 
confirms,  in  case  of  need,  tho  gratui- 
tous gift  to  the  Clongress  of  thos.dd 
thirteen  United  States."  (Ibid.,  p. 
21H.) 

Similar  language  is  used  in  Artido 
IV,  (Ibid.,  !>.  21!)]  :  "and  itissigned  by 
tlie  MiniKters  Plenipolentiari's  of  Ium 
Majesty  and  the  Congress  of  the  thir- 
teen United  States  of  North  America." 
(Ibid.,  p.  3iy. ) 

In  the  llrst  Article  of  the  Treaty  of 
France,  in  1782.  with  Great  HriLain, 
"  His  lirltannlc  Majesty  acknowleiigea 
tho  said  United  States,  viz..  New 
Hampshire,  Massachusetts  Bay,  Ilhodo 
Island  and  Providence  Plaut.illons, 
Connecticut,  New  York,  New  Jcr.'-ey, 
Pennsylvania,  Delaware,  MnrylMnl, 
Virginia,  North  Carolina,  South  C.iro- 
llna,  and  (ieorgia,  to  bo  free,  sove- 
reign and  irulepcndont  Slates;  that  he 
treats  with  them  as  such,  and  for  liirn- 
Hidf,  his  heirs  and  successors,  rclin- 
(pilslies  all  claim  to  tho  Oouvcrnmcnl, 
propriety  and  teriitoriiil  riglitsof  the 
same,  and  every  i)art  thereof ;  and  th:it 
all  dlsi)utes  whicli  ndght  arise  in  fu- 
ture on  tho  subject  of  the  lioundarieB 
of  the  said. United  States  maj-  be  pre- 
vented, it  Is  hereliy  agrecnl  and  de- 
clared that  tho  following  are  an  I  .shall 
bo  their  boundaries,  viz.  :  "  (Ibid.,  p. 
2G1.) 

In  the  first  article  of  the  Treaty  of 
Franco  in  178.'J  with  Great  Uritaiu, 
"  His  Britannic  Majesty  acknowle.lges 
the  said  United  States,  \iz.,  New 
Hampsiure,  Massachusetts  Hay  Uhodo 
Island  and  Providence  Plant  itions, 
(tonnecticut.  Now  York,  New  .leisey. 


CHAV.  II. 


V^-] 


OllIfUXAf,   SOVKUKKINTY    OK   THK    STATES. 


67 


III  tlio  provisions  coiiccriiiiij,'  the  restitution  of  (■onliscated  prop- 
erty, it  is  merely  agreed  that  (Congress  shall  reeonimend  this  to  the 
liCgislaturiis  of  tlie  respective  States,  without  any  defniite  promise 
on  the  part  of  the  United  States,  lluit  the  several  States  shall  carry 
out  said  rocommondations,  as  in  fact  many  of  them  failed  to  do.^"" 
Similar  hinguage  may  be  found  in  the  provisional  articles  for  this 
Treaty  signed  in  1782.'" 

Tlie  independence  and  sovereignty  of  the  separate  States  was 
(Hjcasionally  disputed  even  at  that  time.  Thus,  in  the  debates  of 
(lie  Federal  Convention,  Rufus  King 

"  wished,  as  everything  depended  on  this  {^'oposition,  that  uo  ol)jt'etion 
niijllit  be  improperly  indulged  against  the  phraseology  of  it.  He  cou- 
ci'ived  that  the  import  of  the  term  'states,'  'sovereignty,'  ^  ntitiaiKil,' 
'  federal,'  had  been  often  used  and  applied  in  tlie  discussions  iiiaccu- 
riitely  and  delusively.  The  States  were  not  'sovereigns'  in  tlie  sense 
(■(inti'iidetl  for  by  some.  They  did  not  possess  the  peculiar  features  of 
sovereignty  —  they  could  not  make  war,  nor  peace,  nor  alliances,  nor 
treaties.  Considering  them  as  political  beings,  they  were  dumb,  for 
they  could  not  speak  to  any  foreign  sovereigu  whatever.  They  were 
deaf,  for  they  could  not  hear  any  proposition  from  such  sovereign. 
They  had  not  even  the  organs  or  faculties  of  defence  or  offence,  for 
they  could  not  of  theriselves  raise  troops,  or  ecpiip  vessels,  for  war. 
On  the  other  side,  if  the  union  of  the  States  comprises  the  idea  of  a  con- 
federation, it  comprises  that  also  of  consolidation.  A  union  of  the 
States  is  a  union  of  the  men  composing  them,  from  whence  a  nntinmil 
character  results  to  the  whole.  Congress  can  act  alone  without  the 
States,  they  can  act  (and  their  acts  will  be  binding)  against  the  instnie- 
tions  of  the  States.  If  they  declare  war,  war  is  de  jure  declared  ;  cap- 
tures made  in  pursuance  of  it  are  lawful;  no  acts  of  the  States  can  vary 
the  situation,  or  prevent  the  judicial  coiise([uencc8.  If  the  States, 
therefore,  retained  some  portion  of  their  sovereignty,  they  had  certainly 
divested  themselves  of  essential  portions  of  it.  If  they  formed  a  con- 
fi'deracy  in  some  respects,  they  formed  a  nation  in  others.  The  Con- 
vention could  clearly  deliberate  on   and  propose  any  alterations  that 


ronnsylvnnia,  Delaware,  Maryland, 
Virpiiiiii,  North  Carolina,  South  Caro- 
liiiii,  and  (li-orKia,  to  bo  fioc,  fovor- 
cigii  mill  indi'pciidcnt.  Htatos  ;  that  ho 
troatswith  tlioin  aH  tsueli,  and  for  him- 
K'lt,  his  heirs  nnd   successors,   roliu- 


qulshes  all  claims  to  the  Government, 
propriety  ami  territorial  rlfihts  of  the 
Baiiie,  and  every  part  thereof."  (Il)iU., 
p.  2Gr,.) 

!■"■  Ibid.,  p.  2('.8. 

'»  Ibid.,  pp.  2G1-264. 


08 


NATUKK   OF   rOXSTITlTION. 


[iHAP.  II. 


C'oiifiress  roulil  have  doiio  under  tlic  I'ctlei'iil  Articles.  And  toiild  not 
t'ongresH  propoHC,  I'V  virtne  of  llii'  last  article,  n  ohaniic  in  any  article 
whatever, — and  as  well  that  relating  to  the  eiiiialit}'  of  snl'traye  as 
fliij'  other?  lie  niiule  these  remarks  to  obviate  some  scruples  which  had 
been  expressed.  He  doubted  nuich  the  practicability  of  annihilating  the 
{States;  but  tlionght  that  much  of  their  power  ought  to  be  taken  from 
them."" 

Mr.  Madison  said : 
"  Some  gentlemen  are  afraid  that  tlic  plan  is  not  sufKoiently 
national,  while  others  appreli  •  that  it  is  toonuich  so.  If  this  point  of 
representation  was  once  well  I.  .,i|,  we  should  come  nearer  to  one  another 
ilk  sentiment.  The  necessity  would  then  be  discovered  of  circuuiscrib- 
ing  more  effectually  the  State  governments,  and  enlarging  more  effectu- 
ally the  bounds  of  the  general  government.  Some  coiilciiil  that  lh<' 
JStdti'K  (ire  Korcreiiiii,  irlicn  in  fiicl  llie;/  (ire  oiil/i  political  snrieticn.  The 
States  never  possessed  the  essential  rights  of  sovereignty.  They  vere 
ahca>in  rested  in  Conrfress.  Their  voting  iis  States  in  Congress  is  no 
ovideiice  of  their  sovereignty.  The  State  of  Maryland  voted  by  coun- 
ties. Did  this  make  the  counties  sovereign?  The  States,  at  present, 
are  only  great  corjiorntiona,  having  tlie  power  of  making  by-laws,  and 
these  are  effectual  only  if  they  are  not  contradictory  to  the  general  con- 
federation."" 

In  the  legislature  of  South  faroliiia,  which  vccoinniciidcd  the 
State  Convention  of  ratification,  (iciicial  Cliarles  Cotesworth  I'inuk- 
ney,  after  (juoting  the  Declaration  of  Indepuntieiicc,  used  these 
prophetic  words : — 

"  The  separate  independence  and  individual  sovereignty  of  the  sev- 
eral States  were  never  thought  of  by  the  enlightened  band  of  patriots 


"  Madison  Papers,  Elliot's  Debates, 
2(1  o('  ,  vol.  V,  pp.  212,  213. 

'»  Yat(is's  Notes  of  Sooret  Debates, 
Elliot's  Deliates,  id  ed.,  vol  1,  p.  H'd. 
Mudif oil's  own  report  of  this  speech, 
which  was  piililisheil  after  his  siilisc- 
qiient  report  on  the  Virginia  Resolu- 
tions, omits  most  of  tliis  lanf.;iiaKe. 
(MudiHon  Pajjcrs,  iliid.,  vol.  v,  p.  2,j0.) 
Euf  us  KinR  thus  reports  the  speech  :  — 

"Wo  are  vague  in  our  laugungn. 
We  speak  of  the  toverelguty  of  the 
States.  The  Stales  are  not  sovereign 
iu  the  full  extent  of  the  term.     Tliero 


Is  a  gradation  from  a  simple  corpor.a 
tion  for  liuiitod  and  spocllled  objects, 
such  as  an  incorporation  of  a  number 
of  mci'hanics,  ui)  to  a  full  sovcroiguty 
as  preserved  l)y  indepi'iulent  nations 
whose  powers  are  not  limited.  Tlio 
l:\slonly  ;iro  truly  sovereign."  (Rufus 
King's  Rt'port  of  Peliates  in  Federal 
CoMVcnliiMi,  Juno  21),  1787;  Life  and 
Curn^sponilence,  vol.  i,  p.  CIO.  Sec 
also  Dr.  Benjamin  Rush,  iu  his  Ad- 
dress to  the  People  of  the  Uuite<l 
States,  American  Museum,  Januory, 
1787. 


§!-•] 


OiaClNAL   SOVEUEIONTY   (IK   TllK  STATES. 


t)!) 


wlio  framed  lliia  Docluratiou ;  the  Bcvcnil  States  arc  not  even  miMitioiicd 
by  iiaiiio  ill  iuiy  part  of  it,  us  if  it  was  iiiti'iidcd  to  iiiipreHS  tliirf  iiisixiiii 
on  Aniorica,  that  our  fri't'(h)in  and  indi-pcndcnci'  aronn  from  onr  I'nion, 
and  that  nitiiont  it  we  eonUl  lie  neither  free  nor  independent.  I>et  us, 
then,  eonwiih-r  all  attempts  to  weaken  this  Union,  l)y  inaintainini;  liait 
eneh  Stale  is  separately  and  individually  independent,  as  a  species  of 
political  heresy,  which  can  never  beuetit  us,  but  may  bring  on  us  the 
most  serious  distress."" 

Aliout  tiio  piiiir  soveveiRiity  of  three  at  least  of  tlie  I'liited 
States,  there  eiin  lie  no  (juestion.  The  States  of  North  Ciiro- 
lina  and  IJhode  Ishuul  at  first  refused  to  ratify  llie  Federal  Coii- 
stitutioii.  'Die  lu-w  goveninieut  was  nigaiiized  by  eleven  St;itcs 
on  March  4,  1780.  North  Carolina  did  not  ratify  the  Coiisli- 
tntioii  until  November  21  of  the  same  year,  and  Rhode  Island 
not  till  .May  2!',  170U.  In  the  meantime,  these  States  were  eon- 
sideivil  hy  themselves,  as  well  as  hy  the  eleven  I'liiteil  Slates, 
and  were  in  fact,  indepeiidciil  and  foreiirn  State-;.-"  Texas  declared 
Iki'  iiideiicndcncc  in  IS;!")  and  maiiitainccl  it  until  1H4">,  when  slu; 
was  incorporated  into  tlu>  Fiiion  hy  an  Act  of  Congress.  Cpon 
the  other  hand,  it  is  hard  to  see  how  the  new  States,  carved  out 
of  tiie  national  territory  which  was  acquired  by  eoiupiest,  treaty, 
or  cession  from  the  other  States,  were  ever  sovereign  or  iiide- 
IH'iidcnt.-' 


"Elliot's  Debates.  2d  ed.,  vol.  Iv, 
\i\<.  'Ml,  ;)()'2.  See  also  Wilsdii's  rv- 
niarlvs  on  the  nature  of  the  Coufeder- 
alicm.  Coiisideriitioiis  on  the  Bank 
of  North  Aniorica,  Wilsoa's  Work.'^, 
vol.  ill,  ii|i.  ■}()(•,,  407. 

-'  Tlio  Slassaeliusetts  Magazine  for 
March,  17s'.i,  .^aya,  bi  its  siiiiiniury  of 
ATiH'iiciiii  News  and  Politics  : 

■'  Itnom;  Island.  This  foreign 
St.'ile  has  again  refused  to  aeoedo  to  a 
miionwitli  hi'rlate  sisters.  Anxiousof 
'■njciying  tli((  protection  of  tli(3  TTnion, 
llie  inhabitants  of  Newport,  Provi- 
ib'iiceand  other  [ibices  are  detorndneil 
to  f-im  for  its  prot-'otiou  and  to  bo  an- 
nexed to  Massaeliiisetts  or  Coimnetl- 
lul,  tlicreby  to  evlueo  to  their  pre.seut; 
lof^i^latare,    that    unless    they     Uiko 


measures  for  a  speedy  mloptlon  of  the 
Constitution,  their  lioasted  sov(!reign- 
ty  U3  an  independent  State  will  ero 
long  be  at  an  end." 

"  NoiithC.vuolina.  Thisollicr  for- 
eign State  lias  lately  oviuceil  a  dispo- 
sition to  lieeome  u  menilier  of  Iho 
United  States."  Tlierevi'tine  laws  [Hit 
them  upon  the  same  fooling  as  bireigu 
Stall's,  and  there  was  no  |irovision 
for  them  in  tlie  tlrsl  Judiciary  Act. 
1  Story's  Laws  of  the  l'.  S.,  pp.  lin.  r>0, 
r,:t  ■    Baldwin's  Views,  p.  DO. 

■-'  In  his  Videdietory  to  the  Senate, 
Judali  P.  Bi'iijamiii,  of  Louisiana,  ar- 
gued ingeniously  that  the  United 
States  hehl  the  sovereiicnty  of  this 
territory  In  trust  until  the  adnussbm 
of  each  new  State.     (Blaine's  Twenty 


70 


NATUIsr:   OF    CONSTITUTION. 


[chap.  II. 


It  seems  clear,  however,  that  Marshall  was  riglit  when  he  said  :— 

"As  preliiniii.iry  to  the  vory  alilo  diHcuHHious  of  the  C'onstitiitioii 
whicli  we  liiive  licnrd  from  tlie  bn.',  and  iin  liaviii;;  some  inlliienee  on  its 
eoiiHtructioii,  reforenee  \\i\n  been  made  to  the  political  Hituation  of  tlu'Hc 
States  anterior  to  its  formation.  It  has  been  said  tliat  tlu'v  were  bov- 
ereii;n,  were  completely  independent,  and  were  eonueeted  with  each 
other  only  by  a  league.  This  is  true.  But  when  these  allied  soverci{?ns 
converted  their  leaj^ue  into  a  <;overnment.  when  they  converted  their  con- 
gress of  ambasssidors,  deputed  to  deliberate  <m  their  eoninion  concerns, 
and  to  reconuneud  measures  of  general  utility,  into  a  legislature  empow- 
ered to  enact  laws  on  the  most  interesting;  subjects,  the  whole  character 
in  which  the  States  appear  underwent  a  change,  the  extent  of  which 
must  be  deteruiineil  by  a  fair  consideration  of  the  instrument  by  which 
that  change  was  effected."  '^' 

^  V.i.  The  Constitution  was  formed  I>y  the  Thirteen   States. 

Jt  must  also  be  conceded  tiiat  the  (Constitution  was  formed  hj 
the  thirteen  States  and  not  by  the  people  of  the  United  States  at 
larjje.  The  delegates  were  in  some  cases  elected  by  the  people  of 
tlic  different  States,  and  in  others  a[)pointed  by  their  respective 
legislatures.  They  voted  in  llie  (\invention  hy  States  and  not  as 
individuals.  The  object  of  the  ratification  by  the  people  of  tlie 
several  States  was  because  it  was  deemed  tliat  the  legislatures 
liad  no  power  under  their  respective  constitutions  to  delegate 
or  grant  away  any  power  vested  in  them  by  the  ratification  of 
the  Constitution.'  These  facts  are  plain  to  every  student  of  the 
history  of  tiie  appointment  of  the  delegates  to  the  Federal 
Convention,  the  proceedings  of  that  Convention,  and  the  ratifiea- 
of  the  Constitution  by  the  thirteen  States. 


ii;  14.   Form  of  Katifleations  of  the  Constitution. 

The  Constitution  was  ratified  l)y  tlie  people  of  tlie  thirteen 
States  acting  througli  conventions  elected  for  tiiat  purpose. 
Tliere  is  nothing  in  the  form  of  the  ratifications  which  suj)ports 

Yenvs  in  Congress,  vol.  i,  pp.  249-2.'51. )  §  I^-  '  He(i  the  Speech  of  Madison, 

Senator  Yulee,   of    Floridii,   niiide    u  quoted   I'n/ra,  §  19.     For  tlie  ereiliMi- 

Bimiliir  claim.     (Iliid.)  tials   of   the   delepfates    to   the   State 

"'-  Chief  Justice  Marshall  iu  Gibbons  Couvoutiou,  see  supra,  §  12,  uoto  5. 
r.  Ogden,  9  Wheaton  1,  187. 


[CIIAI'.  II. 


V^-1 


FOIIM    OK    KATIKICATIONS. 


71 


le  said : — 
onstitiitioii 
I'lice  on  itH 

)ll  (if  tlU'HC 

were  BDV- 
with  ea(!li 
sovereigns 

I  their  con- 

II  coiiceruB, 
lire  empow- 
le  elmraeter 

I  of  wiiicii 
lit  by  wliieb 


«-ii   Htatcs. 

formed  by 
I  States  iit 
e  people  of 

respective 
and  not  as 
t)ple  of  tlie 
legislatures 
to  delegate 
;ifi(;ation  of 
dent  of  tlie 
lie  Federal 
the  ratifica- 


ion. 

lie  thirteen 
it  purpose;. 
sh  sui)ports 

I  of  Madison. 

r  tho  ("rcdcMi- 
lo  the  State 
12,  nolo  5. 


till!  position  that  the  Constitution  was  a  league,  or  an  amendment 
of  tlio  Artieles  of  Confederation,  or  that  the  right  to  witiidraw 
from  it  was  reserved.  Seven  of  thein  ran  in  the  lumie  of  "We, 
the  delegates  of  the  jieojile  of  tlio  State."'  Tliat  of  Delaware 
was  in  the  name  of  "  We,  tlu!  deputies  of  the  people  of  the  State 
of  Deliiware."  Tiuit  of  New  Jersey,  "  \\'e,  tlie  delegates  of  the 
Sl;it(;  of  N(>w  .ler.sey."'  The  ratilieatioiis  of  Massaciiusetts,  South 
Caroliiiii,  New  I  ^vInpsllil■e,  and  Xortii  Carolina  were  in  the  third 
jiereon,  and  in  tie  name  of  "the  ('onvention,"  or  "this  Conven- 
tion." All  of  vhem  used  the  phra.sc  "ratify."  Eight  of  them, 
the  piirase,  "  assent  to  and  ratify."  ^  Tliat  of  I  )eliiware  stated  that 
its  deputies  did  "freely  and  entirely  ajjprove  of,  assent  to,  ratify 
and  eonfirni  the  said  Constitution."  Tliat  of  New  Jersey,  tliat 
the}'  di<l  "agree  to  ratify  and  conlirni  tiie  saniij  and  ever)-  part 
thereof."  That  of  Conneeticut,  "  assent  to,  ratify,  and  adopt  the 
Constitution."  The  same  form  was  used  by  Georgia.  The  (!on- 
veiition  of  North  Carolina  resolved  that  it  did  "adopt  aud  nitify 
the  said  Constitution  and  form  of  government."  Each  of  them 
acted  ii!  the  name  and  on  behalf  of  the  people  of  their  respective 
State,  and  no  others.  The  preandile  of  the  ratification  of  Mas- 
saeluisetts,  however,  recited  that  the  Convention  acknowledged, 
"  will)  rr-ateful  hearts,  the  goodness  of  the  Su[)reme  liuler  of  the 
universe,  in  afTordiiig  the  people  of  the  United  States,  in  tlie  course 
of  His  Providence,  an  opportunit}',  deliberately  and  pcticeablj^ 
without  force  or  surprise,  of  entering  into  an  explicit  and  solemn 
eoinpnct  with  each  other,  by  assenting  to  and  ratifying  a  new 
Constitution,  in  order  to  form  a  more  perfect  union,"  with  a 
recitid  of  the  other  clauses  set;  forth  in  the  preanililc  to  the  Federal 
('onstitution.  'i'he  use  of  the  word  "compact"  here,  if  of  any 
legal  effect,  can  only  strengthen  tlie  position  of  those  who  claim 
that  the  Constitution  was  a  mere  social  compact  between  the  whole 
IK'(i|ile  of  the  United  States  at  large,  and  not  a  compact  in  the 
iiiitiiie  of   a    treaty  l)etween    the    people   of    the    several    States. 

S  11.  '  Tlip  Statos  of  ronnyslvania,  ^  Pininsylvania,  Massachusetts,  Ma- 

<'<)niiiM'tiinit,  (Ti>()rgl«,  Miiiylaiiil,  Vir-  rjiaml,  Soiilli  Carolina,   New  Hamp- 

;,'iiiiii,  Now  Yorli  and  Itliodo  Isl:ind.  slilre,  Virginia,  New  York  and  lihode 

Tlie  forms   of  the  credent  ial-;  of  I  lie  Island, 
delegates arefiuotedHiy>ra,  §  12,  iiotoS. 


7-2 


NATURE    OF    CONSTITL'TION. 


[CUAI-.   II. 


TIio  words  "with  eiiuli  otlier  '  would  have  bueii  lephiced  by  .suiiu- 
|ihriisc,  such  us  "  between  the  people  of  eaeh  State,"  liad  that  been 
the  intent. 

Mueh  stress  is  laid,  by  the  advocates  of  secession,  upon  the 
dc.'huations  in  the  ratifications  of  Virginia  and  New  York.  The 
ratification  of  New  York  is  preceded  by  a  declaration  of  twenty- 
four  articles  concerning  political  rights  and  the  construction  of 
the  Constitution.     These  are  followed  by  the  declaration, — 

"Under  tlicsc  impressions,  and  dcelarinf;  tliat  the  rigfits  aforesaid  can- 
not be  aliridffcd  or  violated,  and  that  tlie  explanalions  aforesaid  are  con- 
sistent with  tlie  said  Constitution,  and  in  confidence  tliat  tiie  amend- 
ments wliicli  shall  liave  been  proposeil  to  the  said  Constitution  will 
receive  an  early  and  mature  consideration,  we,  the  said  delegates,  in  the 
name  '  .itl  on  behalf  of  the  peoiile  of  the  State  of  New  York,  do  by 
these  presents  assent  to  and  ratify  the  said  Constitution." 

Manifestly,  tiiis  declaration  of  the  understanding  in  New  York, 
to  which  the  other  States  did  not  accede,  could  have  no  bind- 
ing effect  upon  ilic  construction  of  the  inslruincnt.  It  was  not 
intended  to  be  cither  a  reservation  or  a  condition. 

Rut  there  is  notiiing  in  those  dccdarations  which  tends  to 
support  the  right  of  secession.  The  only  one  upon  which  sticss 
is  laid  is  the  third,  which  states  — 

"  That  the  powers  of  the  government  may  be  reassunicd  by  the  [leopie, 
whensoever  it  shall  become  necessary  to  their  happiness." 

This  merely  refers  to  the  right  of  revolution,  which  is  rcciigni/.cd 
in  the  Declaration  of  Inil(']icndcucc,  and  docs  not  claim  to  ]\'  a 
reservation  of  any  legal  right  of  receding  from  the  instruni^'Mt  liius 
ratified.  Similar  observations  ap[)ly  to  the  ratification  of  \'iiginia, 
which  is  jjreccded  by  the  declaration  — 

"  That  the  powers  granted  undertint  Coiwtitution,  being  derivecl  from 
the  people  of  the  I'niled  Stales,  may  l>e  resuiiied  by  tliiiji  whensoever 
the  same  shall  Ik^  perverted  to  their  iiijiiry  or oppres^^ioii,  Miil  that  every 
power  not  granted  liiereliy  reii.ains  with  them,  aad  at  their  will  ;  " 

and  coii'ludcs  :  — 

"  With  these  iiupressioiis,  with  a  soleinii  appeal  to  the  Searcher  of  all 
lu'arts  fur  the  purity  of  mir  iiitenlions,  anil  under  llie  conviction  that 
whatsoever  imperfections  may  exist  in  the  Constitulloii,  ought  rather  to 


't 


S  1.-.. 


v-'-] 


M-,(iAMTY    (IK    AN    IN'mrtHOLUItLIO    INloN. 


73 


liL'  ('x:ur.iiit'd  ill  the  mode  proscribed  therein,  tiiiiii  to  l)rin<;  the  union 
iiilo  (hiiiirer  by  a  delay  with  a  ho\u'.  of  obtaiiiiiu;  ainendiiients  pre- 
vious to  the  ralilicatioiis,  \m  ,  the  said  delegates,  iii  llie  niune  and  in 
lieiiair  of  Virginia,  do  by  ihese  presents  assent  to  and  ratify  the  Con- 
stitution rceoinineiided  on  tlie  ITtii  day  of  Septei  ber,  17'<7,  by  the 
l'\'(leral  Convention,  for  the  (iovernment  of  the  United  States,  lierel)y 
aiinoiMieing  to  all  those  wlioin  it  may  concern,  that  the  said  Constitution 
is  liindiiig  upon  the  said  people  according  to  an  authentic  copy  hereto 
annexed  in  the  words  following." 

In  tiic  New  York  Convention,  Lansini,'  moved  a  resolution 
wliiili  reserved  tiio  right  to  witlidniw  from  the  liiion.  Ihuuiltoii 
wrote  for  uilviee  to  Miidison,  wlio  was  in  Congress  at  New  York. 
Tiie  answer  of  Madison  was  read  to  the  Convention  hy  Iliiniilton 
as  foUows :  — 

"  ]My  opinion  is,  that  a  reservation  of  a  right  to  withdraw,  if  aniend- 
uients  be  not  decided  on  under  the  form  of  tiio  Constitution  within  a 
certain  time,  is  a  conilitional  ratification;  that  it  does  not  niai:o  New 
York  a  lueinber  of  the  new  I'nion,  and,  consequently,  that  she  could 
not  be  received  on  that  plan.  The  Constitution  requires  an  adoption  in 
lull)  and  foi-i'rcf.  It  has  been  so  adopted  by  the  other  States.  An 
adoption  for  a  limited  time  woidd  be  asilefectivc  as  an  ado])tion  of  sonic 
of  the  articles  only.  In  short,  any  condition  whatever  nuist  vitiate  the 
ratilication.  The  idea  of  reserving  a  right  to  withdraw  was  starti'd  at 
lii(  luiiond,  and  considered  as  a  conditional  ratification,  which  was  itself 
aliauilou"d  as  worse  than  a  rejection."' 


S  15.   LefjfivHty  of    an   In<li.ssoIiil>!e   UmIo.i  between   S<»ver<Mt;'i» 

States. 

The  eoneessions,  that  the  separate  .States  jirior  to  tlie  Constitu- 
tion were  sovereign  and  independent,  and  tliiit  the  l'"e(leral  Con- 
stitution was  formed  and  ratified  by  tiu'm  in  tlieir  iudependont 
sovereign  eapai.'ities,  Ijy  no  means  compel  the  eoiiehision  tiiattlu-y 
liail  I/O  power  to  merge  tlieir  several  sovereigntii's  into  one. 
.Met;i]iliysieians  have  claimed  tliat  a  sovereignty  cannot  thus  eom- 
luil  suicide.'  bnl  the  arguments  iire  merely  a  play  upon  words,  and 


'  Hamilton's  Wiiiks,  vol.  ii,  pp.  ■ti'i7  lies,   hy  Hciiianl  •!.   Sajj'',   umler  tlio 

■171  ;  (piotiMl  in  JJaiienil't's  Ilislory,  cil.  i)soii(loii,vm  of  1'.  C".  Ci'alz,   liarrister, 

(iI'IHm;,  vol.  vl,  p.  4.")!l.  4Ui    eil.,    I'art,    I,  cli.   vli,   p.  -Ih;    Piirt 

5  1.5.  1  See  till!  Kepul.bc  of  Ui-pub-  II,   eh.   xiii,    p.    112;    uli.  \i\,  p.   Il7, 


NATUUIC   OF   rOXSTITUTION. 


[CIIAT.   II. 


tliu  f.ii'ts  c.'onrlusively  disjjose  of  thoin.  Tlie  S{)vt'rfiit,'iity  of  ii 
St'.ite.  like  tlmt  of  ;i  inoiuircli,  can  bo  lost  by  abdication  as 
well  as  by  conquest.  Witboiit  discussing  the  merger  of  tlic 
J'niti'(l  States  and  Provinces  of  the  Netherlands  into  the  King- 
<l()iM  of  Holland,  and  the  different  sovereignties  of  the  Italian 
peninsula  into  the  Kingdom  of  Italy,  we  have  a  ease  known  to 
the  niakeis  of  the  Federal  Constitution,  with  comments  on  it  by  a 
writer  whom  tlitiy  and  their  contemporaries  recognized  as  an 
aiithoi'it v.-  After  tlu?  union  of  the  crowns  of  Scotland  and  Mug- 
laud  by  the  succession  of  .lames  \'\  of  Scotland  to  the  ICnglish 
throne  in  lt!li:5,  the  coiuitries  remained  separate  kingdoms  for 
moi'(^  than  a  century.  Under  Queiui  Anne,  in  1707.  the  two 
parliaments  agreed  to  adopt  twenty-five  articles  of  iinioTi  between 
the  nations.  The  acts  of  ratilicatiou  recite  the  acts  of  the  Scotch 
I'ailiament,  which  established  the  church  of  Scotland  and  the  four 
Scotch  universities,  and  ])rovide  for  a  clause  in  the  coronation 
oatli  promising  the  inviolable  maintenance  of  the  former,  together 
with  tlu^  Knglisb  acts  of  uniformity,  and  all  other  acts  then  in 
force  for  the  preservation  of  the  -hurch  of  Englarul.^  The  treaty 
covenanted  and  it  was  enact'  il  that  these  acts  "shall  forever 
he  observed  as  fundamental  and  essential  coiulitions  of  the  union." 
Hlackstone  saiil :  — 

"  I'lion  these  articles  anil  act  of  union,  it  is  to  be  observed,  1.  That 
the  two  kingdoms  are  now  so  insepiirahly  united,  that  iiothiug  can  vvvr 
«lisuiiit('  tlicni  again,  except  the  uiutual  consent  of  both,  or  tlie  sui'cess- 
ful  resistance  of  either,  upon  aiiprelieiuliiig  an  infriiigeinetit  of  those 
points  \vi)ieh,  when  they  .....•■•  separate  and  inih-peiident  nations,  it  was 
niutaally  stipulated  should  be  '  fundamental  and  essential  eondilinns  oi' 
the  union.'  "  "  It  may  justly  lie  doubleil  wlietlier  even  such  an  infriufje- 
nient  (thougii  a  manifest  breach  of  ^rood  faith,  indesn  done  uixjii  fiie 
most  pressing  necessity)  wo\ild  of  itself  (lissolve  the  union;  for  the 
bare  idea  of  a  state,  without  a  power  somewhere  vested  to  alter  every 


oh.  xiv,  p.  l."!.".  rail  III,  ill.  vi,  |i. 
l!t;l.  I'arl  IV,  I'h.  v,  p.  ;1U7.  Tlils  is 
l)y  far  (lie  abh'Kt  iirguaiont  in  support 
of  tlie  li'jjal  ri^lit  of  accessinii. 

■■'Till'  union  lnlwi'cu  Kn^land  nml 
.Sciitliunl  wjis  citi^il  lis  aa  analngy  liy 
Itujjer  Slii'rniiiM  in  the  Li'Ui'i-s  nf  a 
I'uunlrymuu,    New     lliiviui    (lii/.iate, 


Nov.  U,  1787;  Fiirds  Essays  on  tin' 
Cxjiislltutioii,  pp.  'Jiri,  217;  iinil  liy 
OdvciiKir  Uatiddlph  in  the  VirKiniii 
fiinvi'iitioti.  ElHiil's  Di'lialcs, 'Jil  ed., 
vol.  ill,  11.  I'.K'i.  Hce  HH;in(,  4)  4,  nolo  4. 
■I  Si"i>  KnRlish  Act,  .^  Aim.,  c  H,  I70li: 
Hupra,  §  7,  note  a.  The  Scotch  Aet  wa.s 
a  your  later. 


<  Ulai 
I,    p, 
Allh:iii' 

r.ii 

iii);i' : 
exirlioi 
niisi'  a  ' 

lllilKls 

it  is  lii 
teiiqil 
lui'aiis 
"  To 
flirt  luT, 
or  iilii'i 

llU.ll. 
S.-ol|;,l„ 

aiilliori 
Mmliiiy 
an  ai't, 

iTolilMl. 

iiiii-'lii 
-ii-.|.  if 
Mill  nil 


;;i(;.] 


NOT    A    LKUAL   COMTACT. 


75 


part  of  its  laws,  is  tlie  height  of  political  tihsiirdity.  The  truth  spems 
to  bi',  that  ill  such  an  incorporate  uuiuu  (wliich  is  well  (li!itinjiiii!sli(>cl  l)y 
a  very  leaiiieil  prelate  from  a  fiederate  alliance,  where  such  an  infrin;j,e- 
iiient  would  certainly  rescind  the  compact)  the  two  contractini;  states 
are  totally  annihilated,  without  any  power  of  a  revival ;  and  a  third 
arises  from  their  conjunction,  in  which  all  the  rifjlits  of  sovereignty, 
and  particularly  that  of  legislation,  must  of  necessity  reside."'' 

Tlieso  iuuiiorities  wniikl  soeni  to  1x3  conclusive.  Ami  this  posi- 
tidii  WHS  concedecl  by  JelTersoii  Davis,  wlio  said:  — 

'•  No  doubt  the  States  —  the  ])eople  of  the  States  —  if  they  had  been 
so  disposed,  might  have  merged  themselves  into  one  great  consolidated 
.Siale.  retaining  their  geographical  boundaries  merely  as  matters  of  con- 
venience." ' 

^  10.   The  Constitution  i.s  nut  u  I^ct;al  Compact. 

Tlie  Constitution  is  in  no  Icj^al  sense  ii  compact  between  the 
States.  That  it  is,  has  been  the  contention  of  the  advocates  of 
imllilication  and  secession. >  They  base  tiieir  jjosition  on  the  fact 
that  it  lias  been  called  a  compact  by  statesmen  at  tiie  time  of  its 


*  lilackstono's  Commentaries,  vol. 
i,  ]>.  '.)7,  note  citing  Warhurton's 
Allil:MfC,  I'.tr.. 

Ill  icU'-tono  continues  in  llio  eamo 
iioir  ;  "  lint  tlio  waiitiiii  or  inipnidiMil 
oxirilon  of  this  ri^lit  would  [irobalily 
raise  a  very  alarming  ferment  in  the 
niiails  of  indiviiliials;  unci  therefore 
ii  is  hinted  above  tliut  siieli  nn  nt- 
toaipt  miKht  endanger  (Ihough  by  no 
iiii'Miis  (li'stroy  1  llio  union. 

"To  illustrate  tliis  nuiltiT  a  little 
f;irlher,  au  net  (  f  I'Mrliameiil,  to  rejiiMil 
or  alter  tlio  act  of  uiiiforniity  in  Kn^- 
iand,  or  to  estalilisli  opiwopacy  in 
Si'oil.iuil,  would  (loublloH.s  in  point,  of 
aaihority  be  fiuHleiontly  valid  aial 
t'iialiMH;  and  nolwithstandiiit;  such 
Mil  ait,  Iho  uaioM  would  continue  un- 
iMiilien.  Nay,  eaeli  of  tlieso  measures 
iiiinht  bo  safely  and  honoralily  pur- 
sui'd,  if  rospectivi-ly  afireeiilde  to  the 
scnlimeiits  of  the  KiiKlish  churiii,  or 


the  kirlv  in  .SioMaiid.  Hut  it  .should 
seem  neither  prmleiit,  nor  l>erliaps 
.'onsisteni  Willi  koocI  faitli,  to  venture 
upon  either  of  tlioso  steps,  liy  a  spon- 
taneous exertion  of  the  inherent  pow- 
ers of  Parlianienl,  or  at  the  iiistanco 
of  mere  individuals.  So  .s,aered  indeed 
are  the  laws  above  mentioned  (for 
protoctinR  each  church  and  the  Eng- 
lish  liturjiy)  r;.steemed,  that  in  the 
Keiieney  nets  both  of  1751  and  ITfir) 
the  re^;en1s  are  expre>^sly  disal)led 
from  assentiiiK  to  the  repeal  or  alter- 
alioii  of  either  these  or  the  act  of 
selllemeiit."     Ibid.,  p.  !)(!. 

f'  Davis,  liise  and  Fall  of  the  Con- 
federate (iovernmeut,  vol.  i,  !>.  155. 

*)  10.  '  See  Calhoun's  speech  in  tho 
Senate,  Fell,  ati,  1H;1:),  in  n>ply  lo  Web- 
ster's attack  on  his  resolutions  in  re- 
gard to  the  Force  UlU.  Niles'  Ucfjis- 
ter,  vol.  .\liil.  Hup.  p.  25!) ;  Sage's  Tho 
Eeiiuhlic  of  BeimbiicH,  pnKnim. 


NATURE   OF  CONSTITUTION. 


[chap 


adoption  ^  and  since,  even  by  some  such  as  Webster,^  wlio  denied 
tlic  corolliiry  tluit  a  breach  by  some  of  the  parties  h?gally  absolved 
fioiii  olictlicnce  the  rest. 

'i'iie  diihuulty  liero  lies  in  the  fact  th.at  the  term  is  used  by  neaily 
all  wiioni  the}-  ([uote  in  a  colloquial  and  not  a  legal  sense.  Most 
laws  as  well  as  constitutions  are  the  result  of  compromises  of  whicli 
men  spoak  as  compacts.  At  the  birth  of  the  Constitution,  more 
than  now,  this  term  was  common,  since  there  were  then  more 
disciples  of  the  theory  that  all  law  was  based  on  the  social  con- 
tract.^ A  gross  breach  of  such  a  conii)romise,  whether  contained 
in  a  statute  or  a  constitution,  would,  it  was  conceded,  release  the 
injured  ])arty  from  all  further  oliligitions.  Iiut  the  hitter's  action, 
allliougli  justilicd  morally,  N\as  none  the  less  illegal,  and,  where  a 
people  was  a  party,  could  only  l)e  accomplished  by  a  revolution. 
When  .fames  II  was  deposed,  it  was  resolved  by  the  two  Houses 
of  Parliament  ihat  — 

"  King  .lames  the  .Si  coiid.  having  endeavored  to  .subvert  the  Consti- 
tution of  the  kingdom  hy  breaking  the  original  contract  between  the 
King  and  the  people,  and  having,  liy  the  advice  of  .lesnits  and  other 
wiel;ed  persons,  viohitcd  the  finidanientMl  law,  and  witlulrawn  liiinself 
out  of  the  king(U>in,  lialli  jibdieated  tlie  govenmicnt,  andlliut  the  llu'oni' 
is  thi'rel)y  become  vacant." 

Yet  tlie  proceeding  is  luit  justilicd  as  legal,  but  is  always 
<lescribe(l  as  "the  glorious  revolution  of  1G88." 

Am  able  work  by  an  advocate  of  tlie  South,  just  before  tlie 
Civil  War,  argues  that  — 

"  The  Constitution  is  indeed  a  coiiipa.'t  liotween  States,  but  it  is  also 
a  eoiiipael  lietweeii  slavehohiing  and  iion-shiveholding  sections;  and 
these  sections  are  susceptible  of  olilisjatidns  and  injuries."' 

-  See  Ooiivcrni'iii-  Morris,  fiuoted  in  in  I'oston,   Dec   ;l,  ISl'.l,  eonsisliiij;  of 

his  I.lfp,  vol.  iii,  ]).   I'.ri ;  Hamilloii  in  Paiiiel  WeUBtor,  .losiiili  (Jiiiiiey,  iind 

tlie  Federalist,  No.  8-5;  Wasl:inL,Mon  to  others.    I!o.ston,  Knniiu'l  I'lielps,  I'rin- 

D.iviil  Kliiart,  Get.  17.  1787  ;  nnil  other  ter.lHlO  ;  Kayo's  riPpublieotUepiililies, 

iiuolalions  in  SMf,'e's  The  llepuhlie  of  Appeiuli.x  F. 


"•t 


lippiililiea,  'ttli 


pp.  2!>2  2r,7. 


•Ill 


"' See  tlie  Meiiioii;il  to  ConurreBs  on       itself  is  n  eoiiiraet. 
theSulijeetof  Ke-tlililiilip;the  Iiiei'easn       H  .Mass.,  HH, 


some  sense  even  };nver:iiMent. 
lirowii   I'.  Hank. 


of  Slavery  in  Xew  Slates  to  lie  ml  mil  ted 


The  l.o^l  Principle,  by  liarbarosoii 


Into   the  I'ldon,  prepared   by  a  com-      llielunond,  ISOO. 
mi', leu  appointed  at  a  rnblie  Heeling 


t 

4 


§1(1.] 


NOT    A    LEGAL   COMPACT. 


77 


Ami  lii.s  arguments  in  support  of  the  latter  are  as  cngont  :;■( 
those  iidvaiicfd  on  behalf  of  the  former  theory.  Yet  no  hiwvci- 
would  seriously  argue  to  a  court  that  either  of  these  sections  (.au 
ho  a  person  wliich  can  hind  and  unbind  itself  any  more  tliaii  it 
could  sue  or  be  sued. 

Otiiers,  as  Hayne,  speak  of  the  new  government  created  by  the 
Coiistitnlion  as  a  party  to  the  compact:  — 

"Ili-ro,  tlieii,  is  a  case  of  a  compact  between  Hovei'oi<;:ns  ;  and  tiie 
(HK'stion  iirisL's,  wiiut  is  the  remedy  for  a  clear  violation  of  its  cxi)ross 
t(;rins  liy  one  of  the  parties.".  ..."  The  creatinjr  power  is  three-foiu'ths 
of  the  States.  I5y  their  decisior.  tlie  parties  to  the  conipaet  have  agreed 
lo  be  bound,  even  to  the  extent  of  chaniiin^i  the  entire  form  of  the 
liovernment  itself;  ind  it  follows  of  necessity,  that,  incase  of  a  dc- 
lilierate  and  settljd  differeuc  of  opinion  between  the  parties  to  the 
cDinpact,  as  to  t'.e  extent  of  the  ])owers  of  either,  resort  must  be  had 
to  their  counuon  superior  (that  power  which  may  {jive  any  character  to 
the  Constitutioi!  they  may  think  proper),  viz.,  three-fourths  of  the 
States." » 

The  exposure  of  tliis  falhn:y  l)y  Webster  needs  no  words  of 
<'()nnncnt :  — 

"  His  argument  consists  of  two  propositions,  and  an  inference.  His 
propositions  are  — 

"  1.     That  the  Constitution  is  a  compact  between  the  states. 

"  2.  That  a  compact  between  two,  with  authority  n-seivcd  to  one  to 
inti'r|iret  its  terms,  would  lie  a  surrender  to  that  one,  of  all  power 
wliati'vcr. 

"  ;!.  'I'iiei'efore  (such  is  his  inference)  the  ;j;eneral  {iovornnient  does 
not  possess  the  authoriiy  to  construe  its  t>wu  powers. 

iSow,  sir,  will)  (Iocs  not  see,  withoul  the  aiil  ot  expositi(Mi  or  de- 
ti'clioi:,  the  utter  confusion  of  ideas  involved  in  tliis  so  elaborate  and 
systeiii:iti(!  ai'i;uincnt? 

he  Constitution,  it  is  said,  is  a  compact  between  States:  the 
Siui's,  lluu,  anil  the  States  only,  are  parties  to  the  eouijiact.  How 
conios  the  fj;eneral  government  itself  a  party?  Ipon  the  houoralile 
j!i'ntlenian's  hypothesis,    the  general  government  is   the  result  of  the 

Mr.   llayTic'rt  Ueply  to  Mr.  Wclj-  luont  in  MiUinnn's  ease  said;  "Tliat 

KUT,  nliridgiKl   liy  him-^clf,   rli-Uvprcd  was  the  compact  made  with  the  gcn- 

in  thp  S'ualo,  .Inniiary  27,  1H:)i).     Elli-  cral  government  at  the  llnio  it  was 

i(l«  Ddjalos,  2d  cd.,  vol.   iv,  pp.  !i{)'J.  created." 
.")l;i.    So  J^ld^'c  J.  S.  Hliu  k  in  Ids  arj^u- 


NATL'KK    (IF    CDN.sTlTrTION. 


[CIIAI'.   1! 


sM<; 


m 


compact,  the  oreatiire  of  the  coiDpui't,  not  one  of  tlii^  parties  to  il. 
Yet  tiie  !xrj!;uini'nt,  us  tlio  ^rc'iitleinan  has  now  stated  it.  niakos  (lie 
(iovciniiicnt  itself  one  of  its  own  d'eators.  It  makes  it  a  parly  to  thai 
eoiiipaet  to  wliicii  it  owes  its  own  existence. 

"  For  llie  puipose  of  erecting  the  Constitution  on  tiio  liasis  of  a 
compact,  llie  gentleman  consiilers  the  States  as  parties  to  that  compact ; 
but  as  soon  as  his  com])act  is  made,  then  lie  chooses  to  consider  the 
jicncral  froverument,  vhieh  is  the  otTspring  of  that  compact,  not  its 
otTs|)ring,  but  one  of  its  parties;  and  so,  being  a  party,  has  not  thr 
power  of  judging  on  the  terms  of  compact. 

"  If  tiio  whole  of  the  gentlemen'ti  main  jjroposition  were  conceded 
to  iiim  —  that  is  to  say.  if  1  admit,  for  the  sake  of  the  argument,  that 
the  Constitution  is  a  compact  between  States  —  the  inferences  wliicli 
lie  draws  from  that  jiroposition  are  warranted  by  no  just  reason  ;  bi 
cause,  if  the  Constitution  be  a  compact  between  States,  still  that  Con- 
stitution, or  that  compact,  has  established  a  goverinnent  with  certain 
powers;  and  whether  it  be  one  of  those  powers,  that  it,  shall  construe 
and  interpret  for  itself  the  terms  of  t'le  conqiact,  in  doubtful  cases,  can 
only  be  decided  by  looking  to  the  compact,  anil  iii(iuiri?ig  what  pro- 
visions it  contains  on  this  point.  Without  any  inconsistency  witli 
natural  reason,  llie  government,  oven  thus  created,  might  be  trusteii 
with  this  i)()wer  of  construction.  The  extent  of  its  powers,  therefore, 
must  still  be  sought  for  in  the  instrument  itself."  ' 

'riui  wliolc  pliniseology  of  tiu;  Constitution  is  in  cdnllict  with 
the  one  tlicory  as  nmch  us  witli  tlie  otlier.  In  contrailistinctinn 
with  tiic  preceding  instrument  of  union,  it  docs  not  call   itself  a 


'  Wobster's  Reply  to  Hayrie,  Elli- 
ofs  Debates  2(1  ed.,  vol.  Iv,  ])().  .'JKi- 
B17.  This  point  is  yield(>(l  liy  tlie 
ueute  autl  learned  uiitlior  of  The  Ke- 
()iil)li(;  of  Ki'piililies,  -Ith  ed.,  jip.  2,>'J 
■il\():  "The  Fointeontli  I'arly  to  the 
<'()iiipii(t  wijp,  iiei-orilbii.'  to  U<)l)erl  Y. 
il/iyiie  (iiiij  iIiiilRe  .1.  S.  Jiliii'li,  the  ^'i)V- 
eniiuiMit,  wlijeh  I'ould  not,  have  hnil 
any  oxistenee  I  ill  lotiK  nfler  tlin  eleven 
Mti/li'S  liad  ralilli'il,  e.-liilili^lied,  iind 
llnlHlieii  hiiid  ii>iiipiu:t."  Aftenpiolliih' 
tllDUl  : 

"  Other  eminent  men  niaUe  Uie  same 
ndslako,  bo  Itiiit  the  eonfiislr/n  of  ide.is 
on  this  fiiihject  is  jfeneral.  It  is  Only 
neeebsary  to  say  thai,  the  'ompact  ox- 


isti'd  and  waseonii)lelo,  t!.i(iii;!li  thos'' 
ratificatioMS,  deelared  In  itself  to  In' 
Mullleienl  for  the  osl,alil:sliinent  of  it. 
many  n'onlh.s  before  the  nener.il  (;o\ 
eniment  existed.  After  the  eolleetivr 
Stales,  in  the  ('ont;n!SS  i:f  Iheniselvi  :- 
had  ri'i'iiunizeil  tlii>  llnislie  1  I'onipH'l. 
and  ad\  ised  tlie  Stales  to  act  under  il. 
liy  electlni,'  their  siilijects  r.s  lb;  fani- 
tionaries;  after  the  soviMal  Stales  had 
oloi  .  "d  their  cpiotas,  ai'c'diduiK  to  tlie 
exju'ess  terms;  and  aflerlhi'sei'lectees 
had  convened  and  ori,'anized  undirtho 
said  pact;  then  and  nut  lill  then  did 
or  eould  the  |.'  ""il  goveninient  ex- 
ist. Il  is  then  ,1...  .1(1  to  call  the  gov- 
ernment a  party." 


'f 


.<1li.] 


NOT    A    I.F.(!AL    COMI'ACT. 


19- 


li'iijTiii','  nor  a  compact,  nor  articles  of  confcdovation  ;"  but  a  Cttii- 
siitution,'"  which  is  onlaiiied  ami  cstal)lislic(l,"  wliicli  vests  powers 
ii!  II  t^ovcniiiieut; '^  and  whicii  shall  he  the  supreme  law  of  tin? 
laiitl.  hv  which  tlie  judges  in  every  State  shall  he  hound, 
am  iliinn'  in  lu;  Constitntion  or  laws  of  any  State  to  the  contrary 
ni)t\\illistiindin,i(.'''  Tlu;  Constitution  is  founded  upon  compact, 
liiit  is  not  itself  a  coMi[)act.'* 


■•  Articles  of  CmffdiM-ation,  III. 

•'  I'rcniiililn  im  1  (■(iiicliidiiij^  <•llul^^c 
(if  Artii'li'sof  Coiifoili'ralidii. 

"  Si'o  Wclistcr's  Spocfli  in  tlio  Si'li- 
atn,  roll.  10,  183;),  ngiilnst  Callioun'rt 
Ui'-nhitious;  Nilos's  lU'^lslor,  xliii, 
Apiii'iiilix,  p.  170. 

n  Proftiiitilp. 

'-  Artiolo  I,  §  S,  ccincliKliii;;  clause. 

"Tuil.,  Ailido  VI. 

"  "  Wlii'llici-  Uui  Coiistltutidii  Im  a 
cmiip.'ict  licUvccn  iStiitos  in  tlicir  .sovc- 
ri'i^rn  ciipacilicB,  is  a  (lucstioii  wliich 
iiHist  lio  mainly  aigiicd  fmni  wliat  ih 
conl.'iincd  in  tlio  inslnmicnl  itself. 
Wc  all  .■ii;i'co  lliatil,  isan  instriiiiicnl, 
wliiili  liiis  in  .''oMio  way  licon  clothed 
with  jiowor.  Wo  all  admit  that  it 
sjiealis  with  authority.  Tlio  liiHtiinos- 
tiiMi  then  Ih,  whatdoes  it  sayof  itself? 
What  ildOfi  it  purport  to  ho?  Does  it 
style  Itself  a  Leagiio,  Coufpileracy,  or 
i'oiii])acl  Ijclwecn  sovorcign  Slat(M? 
It  is  to  Im'  renienili(>r(-d,  sir,  that  the 
Ciinslitniion  began  to  speak  only  after 
its  adoption.  Until  it  w.'is  rat illeil  hy 
Mine  Stales,  it  was  liut  a  jiroposai,  the 
aiere  ilniugiit  of  an  instrnnjent.  It 
was  like  a  deed  lirawn,  lint  not  o.\e- 
culed.  Tlieronventiun  had  framed  it  ; 
sent,  it  to  Congress,  Ilieii  silting  nn- 
di^r  the  CiMil'ederation;  Congress  liad 
transmit leil  it  to  tlin  State  legisla- 
tnru.s;  and  l.y  these  last  it  was  lahl 
before  conventiona  of  the  people  iu 
tlie  Hcveral  Slates.  All  this  while  it 
wa.'^  inoperativo  paper.  It  had  re 
ceived  no  stamp  ft  anlhorily,  uo 
Fanetioii ;  it  spoke  no  language.  But 
when  ratidod   l>y  tho  pivplc  iu  their 


respective  convenlions,  then  it  had  u 
voice,  and  spoke  aiilhenticany.    Every 
word  in  it  had  tln-n  received  the  sanc- 
tion of  the  popular  will,  an<l  was  to  1)() 
roeoivnd  a.s  t  ho  expression  of  llial-  will. 
What  tho  (lonstitution  .says  of  itself, 
therefore,   is  as  conclusive  as  what  it 
says  on  any  other  point.     Voca  it  call 
itself    a    'Compaet'?    Certainly  not. 
It   used    tho  word  compact  hut  once, 
and  that  is  when  it  di'clares  tliat   the 
States   shall  enter   into   no  compact. 
Does  it  call  itself  a  '  League ',  a  '  Con- 
f(!deracy',   a   'subsisting    Treaty   be- 
tween   tho   States'?      Certainly    not. 
There   is  not  a  ])article  of  siu-li  lan- 
guage in  all  lis  pages.     Hut  itdei  lares 
il.self  a  CunKtititliitii.     What  is  a  Cun- 
Hliluliou?     (Jcrlaijdy    not    a    league, 
eonipa<'l,  or  confederacy,  but  a  fiiiidct- 
menlitl  law.     That  fundamental  regu- 
lation which  determines  the  manner 
in  whicli  tlio  p\iblic  authority  is  to  bo 
exe(aile<I,   is  what  forms  the   ciinMilu- 
tion  i>t  ii  State.     Those  iiiim.arv  rules- 
wliicli  concern  the  body  itself,  and  tho 
very  being  of  the  politii'al  society,  tho 
form  of  gov criuiient,  and  the  manner 
in  which  poweristo  beexerclse<l,      nil, 
in  a  word,   which  form  together  tho 
citiHliliidon  of  a  Sl'ite,  tSics,"   aif  the 
fundamental  laws.     This,  sir.  is   tlM- 
Kwgnago  of  tho  public  writers.     I'.ut 
il'o  wo  need   to   be  infornicd,  in  thl.s 
countrj',  what  a  co>intilulkin  is?     Is  it 
uotnn  idea  perfectly  familiar,  (lelluilo, 
and  well  settled?     We  are  at  no  loss 
to  undi'i'stand  what  is  meant  by  tho 
Conslilntion  of  one  of  tho  States;  and 
the  Constitution  of  the  United   States 


80 


NATUKE  OF  CONSTITUTION. 


[CHAl'.  II. 


8  17.   I'rocoodiiiKS  in  Federal  Convention  as  to  tlin  Deter- 
mination of  tlie  Form  of  tlie  New  Government. 

The  proceedings  in  the  Federal  Convention  show  that  it  was 
intended  to  create  a  national   government.     'Die    resolution   of 


Hp«(!iks(>r  itself  iislii'lnn  nii  Instrnniont 
of  (til'  s;iiiio  niiliiro.  It  hiijk,  this 
Ci>nt:tiliilii>'i  siliall  liii  tlni  liiw  of  tlui 
l.'iiiil,  iiiiy  l,liiiif{  in  liny  Hlnii' CiiiinlltH- 
lion,  to  (lie  contrar.v,  iiolwitlistaniliii^'. 
Anil  it  spoalis  of  itself,  too,  iu  plain 
<50nlraclistinrtlon  fiom  ft  confednia- 
llon ;  for  it  snya  tliat  all  (lel)ts  con- 
trncU'd,  ami  all  engancinonts  ontcrcd 
inti),  liv  tin;  TTnitcd  States,  hIuiII  Ih!  as 
valid  under  tliis  Con>t!iliitUm  as  under 
the  Confi'ilnralion.  It  does  not  .say,  as 
valid  under  tliis  CnmpacI,  or  tld.s 
Loaf^ue,  or  this  Confederation,  as  un- 
der tlio  fornior  Confederation,  hut  as 
valid  under  tids  dmslitiilion. 

"  Tins,  then,  sir,  is  declared  to  bo  a 
Constilutiim.  A  Constitution  i.^  llio 
fundamental  law  of  tlio  Stale;  and 
this  is  expressly  dindared  to  ho  tho 
6Ui)remn  law.  It  is  as  it  tho  people 
had  said,  '  AVo  prescriho  this  funda- 
nientnl  law  ',  or  '  the  supreme  law,' 
for  tliey  do  say  that  they  ostalilish 
this  Const  iltili^jii,  r.iid  that  it  shall  ho 
tlu!  siipreme  law.  Tliey  say  tluit  they 
ordain  imd  rHtnldish  it.  Now,  sir,  what 
is  tlic!  eomnioii  applieatinn  of  these 
words?  We  do  not  speak  of  or  laiiuiiK 
le;igiiea  and  eom|ia.'ts.  If  tliis  was 
intended  to  lie  ii  coinpaet  or  league, 
and  tlie  Stales  to  ho  parties  'o  it,  wliy 
was  it  not  so  said?  Why  is  tliero 
found  no  one  expression,  in  tho  whole 
inslriinient,  indieatiiig  such  intent? 
Tho  old  Confederation  was  expres.-ly 
(•ailed  ji  league  ;  and  into  tliis  league 
it  was  deelared  that  tlio  States,  as 
suites,  severally  entered.  Why  was 
not  similar  language  used  in  the  ("on- 
fititutiou,  if  a  similar  intention  had 
«iifit«,'d?     Why  was  it  not  said,   '  the 


States  enter  into  tliis  new  leaKue,' 
'the  States  form  this  new  confedera- 
tion,' or  '  the  States  agree  to  this  new 
eimipaet'?  Or  why  was  it  not  said. 
11  the  languat;e  of  the  geiitlenian's 
resolution,  thai  tho  people  of  the 
several  States  aeeeded  to  this  eoiii- 
pael  in  their  soveri'ign  eapacillos? 
What  reason  is  tliero  for  supposing 
that  the  tramers  of  th<^  Constitution 
rejeitted  expre.ssioiis  appropriate  to 
Iheirown  meaning,  and  adopted  others 
wholly  at  war  with  thai  meaning? 

"Again,  sir,  tlieCoiistitution  speaks 
of  that  political  system  wliich  is  os- 
tahlishod  as  '  the  fiovernmont  of  the 
United  States'.  Is  it  not  doing  a 
strange  violeni  n  to  laugungo  to  call  a 
league  or  a  ii  mpaet  between  sov(>- 
reign  powers  a  (/((icrnmcHf  ?  The  gov- 
ernriienl  of  a  State  is  tliat  organiza- 
tion in  which  tho  political  power 
re.-.ides.  It  is  the  political  being  cre- 
ated by  the  Constitution  orfundamon- 
tal  law.  The  bro.id  and  clear  differonce 
between  a  government  and  .a  league 
or  compact  is,  that  ii  governmi^nt  is 
a  liiidy  jiolilic  ;  it  has  a  will  of  its  own. 
and  it  possesses  jiowers  and  taoultics 
to  exoeiite  its  own  purposes.  Every 
compact  looks  to  soino  power  to  en- 
force its  stiiiulations.  Even  in  a.  com- 
pact between  sovereign  eoinmunities. 
tliero  always  e.vists  111  is  ultimate  rcf- 
ereuco  to  a  power  to  insure  its  execu- 
tion ;  although,  in  such  case,  this 
power  is  hut  tlie  forci"  of  one  party 
against  tho  force  of  another;  that  is 
to  say,  tho  power  of  war.  Hut  a  gn- 
trunient  executes  its  decisions  by  its 
own  supreme  authority.  Its  uso  of 
force  iu  compelling  obedience  to  its 


CHAP.  U. 


'•] 


PROCEEDINGS    IX   CONVENTIOX. 


81 


('oiifjrcss   which    recommended    the    Convention   recited   as   the 
rwison  lor  tiie  same  :  — 

"  Siicli  Convention  appearing  to  be  tlic  most  suitable  means  of  estab- 
lishing in  tbese  States  a  lirm  national  government." ' 


own  cnacttiionts  Is  not  war.  It  con- 
liMMi'lali'S  no  opposing  jiaity  liaviiig  a 
right  of  resistance.  It  rests  on  Its 
power  to  onforco  its  own  will;  ami 
wlit'ii  it  conses  to  possess  this  i)owor, 
it  is  no  longer  a  governniont."  Daniel 
Wel.rtter's  S|ieech  of  Feb.  Ifi,  1833,  In 
tlio  Senate,  iu  opposition  to  Calhoun's 
Kesolntions  )t  .Ian.  22,  1833.  Niles's 
Ucgistcr,  vol.  xllll,  Appoiidi.x,  p.  170 ; 
Welisler's  Speeches,  8th  ed.,  vol.  11, 
pp.  ]"4-17(i. 

See  Calhoun's  Reply  of  Feb.  2G, 
1833,  Niles's  Register,  vol.  xliii,  p. 
a.V.I;  Ciillioim's  Speeches  pp.  98-122, 
qnotoil  In  Stephens'  Constitutional 
View  of  the  Late  War  between  the 
Stales,  vol.  1,  pp.  313-387. 

"I  do  not  agree  that  the  Constitu- 
tion is  a  compact  between  Slates  In 
llioir  Bovoroign  capacities.  I  do  not 
agree  that,  in  strictness  of  language, 
it  is  a  coMipact  at  all.  But  I  do  agree 
thai  it  is  founded  on  consent  or  agree- 
ment, or  on  compact.  If  tlie  gentle- 
man prefers  that  word,  and  uiouus  no 
more  liy  it  than  voluntary  consent  or 
nurcH-nicut.  The  Constitution,  sir.  Is 
not  a  contract,  but  tho  residt  of  a  con- 
Iracl;  moaning  by  contract  no  more 
than  as.scnl.  Founded  on  consent,  it 
is  a  goverumout  proper.  Adopted  by 
tlin  agreement  of  tho  people  of  the 
lliiiled  States,  when  adopted,  it  has 
heiume  a  Constitution.  Tho  people 
liav(!  agreed  to  make  a  Ojustitution ; 
l)ul,  wlien  made,  that  Constitution  bo- 
coiiic-s  wliat  its  name  imports.  It  Is 
no  longer  a  mere  agreement.  Our 
laws,  .sir,  liavo  their  foundation  in  tho 
agreement  or  consent  of  the  two 
lioiisi's  of  f 'ingress.  Wo  say,  habitu- 
ally, lliat  one.  house   proposes  a  bill, 


and  tho  otlior  agrees  to  it;  but  tho 
result  of  this  agreement  is  not  a  com- 
pact, but  a  law.  Th(!  law,  the  statute, 
is  not  tlio  agreement,  but  .something 
created  Ijy  tho  agroonient;  and  some- 
thing which,  when  created,  has  a  new 
character,  and  a'ts  by  Its  own  au- 
thority. So  the  Constitution  of  the 
Unit(!d  States,  founded  in  or  on  the 
consent  of  the  people,  may  bo  said  to 
rest  on  compactor  consent;  but  it  is 
not  itself  tho  compact,  but  Its  result. 
When  tlio  poojile  agree  to  erect  a  gov- 
ernment, and  actually  erect  It,  the 
thing  is  done,  and  the  agreement  is  at 
an  end.  Tho  compact  Is  executed, 
and  the  end  designated  by  it  attained. 
Henceforth,  the  fruit  of  tho  agreement 
exists,  but  tho  agreement  itself  is 
merged  on  its  own  accomplishment, 
since  there  can  be  no  longer  a  subsist- 
ing agreement  or  compact  to  form  a 
constitution  or  government,  after  that 
constitution  or  government  has  been 
actually  formed  and  established." 
Daniel  Webster's  Speech  of  Feb.  IG, 
1833,  in  the  Senate,  in  opixjsition  to 
Calhoun's  Resolutions  of  .Ian.  22,  1833, 
Niles's  Register,  vol.  xliii.  Appendix, 
p.  170 ;  AVebster's  Speeches,  8th  ed., 
vol.  11,  pp.  17G-177. 

See  Calhoun's  Reply  of  Feb.  26, 
1833,  Niles's  Register,  vol.  xliii,  259 ; 
Calhoun's  Speeches,  pp.  5)8-122,  quoted 
in  Stephens'  Constitutional  View  of 
tho  Late  War  lietweon  tho  States,  vol. 
1,  pp.  3'43-387.  So,  marriage  is  founded 
upon  contract,  l)ut  when  solenmized 
is  a  HlalUH,  which  is  something  moro 
than  a  contract. 

§  17.  1  Elliot's  Debates,  2d  ed.,  vol. 
i,  p.  120. 


82 


NA'I'tIM-;    111'    CoNS'l'ITt  TION. 


[CIIAI', 


At  tlu!  (p[H'iiiiit(  111'  tin-  l'\'ilciiil  ( 'iiuvi'iilidii,  (iovei'iKii'  Kiuulolpli, 
on  l)elialf  of  tlu^  (Ick'^Mtes  I'roin  N'irgiiiiii,  iiresuiitcil  ii  sciics  nf 
rusoliitioiis  lis  the  foundiUidii  iif  tlit'ir  pniceedings.  'J'liu  lir.st 
Wiis :  — 

"  lieHolveil,  tluit  the  ArticU'H  nf  Confederation  ouj^lit  to  lie  so  cui- 
rected  and  enlarged  as  to  accomplish  the  objects  proposed  by  their 
institution;  namely,  '  eoininon  defence,  security  of  liberty,  and  general 
welfare.'  "  • 

'I'JK'  nsoliiiidiis  tiinmjjfliout  referred  to  a  "national  leffislatiire,"* 
"a  natioiiiil  executive,"  and  "a  national  judiciary."'''  Cliarles 
I'inckni^',  of  Vir^'inia,  also  laid  licforc  tiie  llonsi!  ''tlu!  draft  of  a 
Federal  (Jovernment,  -whicli  lu^  had  prcpareil,  to  he  af^recd  upon 
hetwecu  the  free  and  iinlcpcndent  States  (if  America."  It  was 
entitled:  "  I'lan  of  a  Federal  ('(institution."  The  copy  of  this 
latter  document,  which  is  now  preserved,  ])resent.s  a  singular  like- 
ness to  the  Constitution  as  finally  adojited.  It  is  iMdieved,  how- 
ever, to  he  a  c(n'reet(!(l  copy,  which  contains  many  alterations 
from  the  original,  consisting  of  propositions  which  were  suhse- 
quently  adopted  l)y  the  Convention.'* 


'-  Madison  rapers,  KlUot's  Dolmtos, 
ail  0(1.,  vol.  V,  II.  1'27;  iliUl..  ii.  1'2U. 

■1  Ihld.,  pp.  127 -128. 

■•  "  Note  (if  Mr.  Miuliwin  to  tlio  rian 
of  Chiirli'S  I'iniloioy,  Jlay  2!),  17S7  :  — 

"  •  Till)  loiiKtli  (if  llio  (Idciuiient  laid 
before  tlie  (!<iiiveiitl(iii,  and  oilier  rir- 
ouiilsl!ini'<"S,  li.'iviiiK  pi'c'Vcntrdtlio  liil<- 
iiiH  of  a  copy  at  th(!  time,  tliiil  \vlii<li 
is  inserted  in  the  di'liales  was  tulieii 
from  tlio  paper  fiuiiisliod  to  the  secre- 
tary of  State,  and  coiitained  in  tlio 
.Journal  of  tin?  Cimvontion,  pulilishod 
in  181!);  which,  it  bein^  talvtm  for 
granted  that  it  was  a  truo  copy,  was 
not  tlioii  oxamiiKvl.  The  coiuci- 
denco  in  Rovoral  instaneea  botweon 
tliat  and  tlio  Constitution,  as  aclopt(!d, 
having  attracted  the  notice  of  otiiers, 
was  at  length  suggested  to  mine.  On 
comparing  tho  paper  with  tlio  Consti- 
tutiiin  in  its  (Inal  furni,  or  in  some  of 
its  stages,  and  with  the  propositions 
and  KiiocclioB  of  Mr.  rinelvnoy  in  tho 


f '(invent ion.  it  was  apparent  that  con- 
siderable error  had  crept  into  thi'  pa- 
per, occasioned  )iosHibly  by  the  loss  of 
tho  document  laid  before  tho  Conven- 
tion (neither  tliat  nor  tho  resolution 
olToroil  by  Mr.  Patterson  lielng  among 
Iho  preserved  papers),  and  by  a  conse- 
ciuent  resort  for  a  copy  to  the  roiigli 
draught,  in  whh'h  eiasiires  and  inter- 
lineations following  what  ]iassed  in 
the  Conventiini,  might  be  confounded, 
in  part  at  least,  with  the  original  text, 
and,  after  a  lapse  of  more  than  tliirty 
yi^ai's,  coiifour.iled  also  in  tho  memory 
of  the  author.  Tliero  is  in  the  pajier 
a  similarity  in  Home  eases,  and  an 
identity  in  others,  with  details,  ex- 
pressions, and  definitions,  tho  results 
of  critical  di.seussiona  and  modillca- 
tion  in  the  Convention,  that  enuld 
not  have  lieon  antii'ipated.  Examples 
may  bo  noticed  in  Article  VIII  of 
the  ])aper;  which  is  remarlialili^  also 
for  tho   eireumstauce,  that,  whilst  ii 


I'UdCKKDINdS    IN    CONVK.NTIMN. 


88 


On  ilic  t'ollowinj,' ilay.  in  iinitiition   of  ilir  prmlice  of  tlic  Coii- 
I'lMliMUlinll  :  — 

••'riic  house  wi'iit  into  Coniiiiittoe  of  tlio  Wliolii  on  tln'  state  of  the 
riiioii.      Mr.  (iorluiiii  wiis  olceti'd  to  the  clmir  by  luillol.     Tlie  jji-oposi- 


s|i<'(llli'H  tlic<  fiim-tioiis  of  till'  I'rPHl- 
(li'iit,  iiu  (miviMion  it<  cuiituiiiiiil  in  tho 
papi'i-  for  tho  I'loction  of  rtiieli  an  of- 
li.i'i-,  lior  imloiMl  for  Ihn  iippoiiitincnt 
I  r  any  cxt^ciitivii  mil ^isl racy,  notwlth- 
>i|;ini!hiK  tho  cviih'iit  piiipoKn  of  tho 
uiitlior  l<>  pioviile  an  intirr  pUiu  of 
a  fi'ch'ral  KovoriiiiK'iit.  Anaiii,  U\  w;v- 
iTal  instaiiors  where  the  paper  corres- 
pondM  Willi  tlie  Coiisliliitidn,  it  is  at 
vaiianco  witli  tlie  ideas  of  Mr.  I'im^lJ- 
iicv,  as  decidedly  e.xpressed  in  his 
priiposilioiis,  and  in  Ids  ar(;iinienlB, 
llie  fMiiiier  in  tho  Journal  of  tho  Con- 
vciiticin,  tho  latter  in  tho  report  of 
its  debntos.  Thus,  in  Article  VIII 
(if  llie  piipor,  provision  is  made  for 
removing  tho  President  hy  inipeach- 
meiit,  when  it  appears  that,  in  tlie 
Convention,  on  the  2()tli  of  July,  ho 
was  opposc>d  to  any  iiupeaehaliility  of 
thi'  executive  magistrate.  In  Article 
III  il  is  reciuired  that  all  money  liiils 
shall  originate  in  the  llrst  branch  of 
the  legislature;  whicli  ho  strenuously 
(ippiised  on  tho  Kth  of  August,  and 
aKalii  on  tho  11th  of  August.  In 
Aitii'h)  V,  members  of  oaeli  Houso 
arc  made  inoligitilo  to,  as  well  us  in- 
capable of  hohling,  any  ollloo  under 
the  Union,  etc.,  as  was  tho  case  at  ono 
stage  of  tho  Constitution,  -a  (Usijual- 
ilh'ation  highly  disapproved  and  op- 
jioscd  by  liim  on  tiie  !'i..  r,!  \ugust. 
.V  still  more  cunclusice  ev.dciice  of 
crnir  in  tho  paper  is  seen  in  Article 
III,  which  provides,  a^  Hie  Coiistitu- 
tiiiii  docs,  that  the  llrst  I'noH'h  of  tho 
legislature  shall  be  chosen  by  tho 
people  of  the  several  States;  whilst  it 
appears  that  on  the  (ith  of  Juno,  ac- 
coidiiig  to  previous  notice,  too,  a  few 
(lays  uuly  after  the  draught  was  hiid 


before  the  Coiivontion,  Us  author  op- 
posed that  niodo  of  choice,  urging 
and  proposing,  in  place  of  It,  an  elec- 
tion by  tho  legislatures  of  tho  several 
States,." 

"Tlie  romarlis  hero  made,  thuugli 
not  material  In  themselves,  were  duo 
to  tho  aiit bent ieilyiind  accuracy  aimed 
at  in  this  record  of  the  proceeilings 
of  a  publii^  lioily  so  much  an  oliject, 
sometimes,  of  curious  research,  as 
at  all  times  of  profound  interest." 

•'Stiildng  liiscrepancies  will  bo 
found  on  a  comparison  of  his  )>lan  as 
furiiished  to  Mr.  Adams,  niid  the  view 
given  of  that  which  was  laid  before 
the  (,'onviMitioii,  in  a  |ianiplilet  pub- 
lished by  Francis  fluids  at  Nimv  York, 
shorlly  lifter  the  dose  of  the  Conven- 
tion. The  title  (jf  the  j)iimplilet  Is 
'  Observations  on  the  jilan  of  govern- 
ment, sulimilted  to  the  Federal  Con- 
vention on  the  twenty-eight  of  May, 
17Hi),  liy  Charles  Pinckney,'  etc.  A 
copy  is  preserved  among  the  '  Select 
Tracts,'  in  the  library  of  the  Historical 
Society  of  New  Vorli.  Hut  what  con- 
clusively proves  that  the  choice  of 
tho  House  of  Representatives  by  the 
people  could  not  have  been  the  ehoieo 
in  the  lost  paper,  is  a  letter  from  Mr. 
Pinckney  to  James  Madison,  of  tlio 
•2Hth  of  March,  17H',),  now  on  his  lilos, 
in  which  ho  emphatically  adheres  to 
ft  choice  by  the  State  legislatuio.s. 
The  following  is  nn  extract :  '  -Vro  you 
not,  to  use  a  full  rxpressioii,  abun- 
dantly convinced  that  the  theoretical 
nonsense  of  an  election  of  the  members 
of  Congress  by  the  people,  in  the  llr..-t 
Instance,  is  clearly  and  pr.-ictically 
wrong  —  that  it  will  in  the  end  bo  the 
means  of   bringing  our  councils  into 


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84 


NATURE   OF   CONSTITUTION. 


[chap.  II. 


tions  of  Mr.  Randolph,  which  had  been  referred  to  the  committee,  boiiif? 
taken  up,  he  moved,  on  the  suggestion  of  Mr.  G.  Morris,  that  the  first 
of  his  propositions,  —  to  wit:  '■Resolved,  that  the  Articles  nf  Coiifi'dern- 
iion  ought  to  be  so  corrected  ««d  enlarged,  as  to  acmmplish  the  objects 
proposed  by  their  institution ;  namely,  common  defense,  security  of 
liberty,  and  general  welfare,'  —  should  mutually  be  postponed,  in  order 
to  consider  the  three  following  :  — 

"  '  1 .  That  a  union  of  the  States  merely  federal  will  not  accomplish  the 
objects  proposed  by  the  Articles  of  Confederation,  namely,  common 
defense,  security  of  liberty,  and  general  welfare. 

"  '  2.  That  no  treaty  or  treaties  among  the  whole  or  part  of  the  States, 
as  individual  sovereignties,  would  be  sulllcicnt. 

"  '  That  a  national  government  ought  to  be  established,  consisting  of 
a  supreme  legislative,  executive,  and  judiciary.' 

"  The  motion  for  postponing  was  seconded  by  Mr.  G.  Morris,  and 
unanimously  agreed  to. 

"  Some  verbal  criticisms  were  raised  against  the  first  proposition,  and 
it  was  agreed,  on  motion  of  Mr.  Butler,  seconded  by  Mr.  Randolph,  to 
pass  on  to  the  third,  which  underwent  a  discussion,  less,  however,  on 
its  general  merits  than  on  the  force  and  extent  of  the  particular  terms 
national  and  supreme. 

"  Mr.  Charles  Pinckney  wished  to  know  of  Mr.  Randolph,  whether 
he  meant  to  abolish  the  State  governments  altogether.  Mr.  Raudolpii 
replied,  that  he  meant  by  these  general  propositions  merely  to  introduce 
the  particular  ones  which  explained  the  outlines  of  the  system  he  had 
in  view. 

"  Mr.  Butler  said,  he  had  not  made  up  his  mind  on  the  subject,  and 
was  open  to  the  light  which  discussion  might  throw  on  it.  After  some 
general  observations,  he  concluded  with  saying,  that  he  had  opposed 
the  grant  of  powers  to  Congress,  heretofore,  because  the  whole  power 
was  vested  in  one  body.  The  proposed  distribution  of  the  powers  with 
different  bodies  changed  the  case,  and  would  induce  him  to  go  gieat 
lengths. 

"Gen.  Pinckney  expressed  a  doubt  whether  the  act  of  Congress 
recommending  the  Convention,  or  the  commissions  of  the  deputies  to 
it,  would  authorize  a  discussion  of  a  system  founded  on  different  priu- 
ciples  from  the  Federal  Constitution. 

"  Mr.  Gerry  seemed  to  entertain  the  same  doubt. 


contempt  —  and  that  tho  logislatures 
(of  tho  States)  are  tho  only  proper 
judges  of  who  ought  to  be  elected?'  " 


No;  1  by  Sladison.  Madison  Papers, 
Elliot's  Debates,  2d  od.,  vol.  v,  I'p- 
570-579. 


§!"•] 


I'UOCEEDINGS  IN   CONVENTION. 


"  Jlr.  Gouverneur  Morris  explained  the  distinction  between  a  federal 
iiiid  a  national  supreme  govcrument ;  tlie  former  being  a  mere  compact 
ivsliiig  on  the  good  faith  of  the  parties,  the  latter  having  a  coiiiplote 
uiiil  cinnpahive  operation.  He  contended  that  in  all  coinmuuities  tliere 
imist  be  one  supreme  power,  and  one  only. 

"  Mr.  Mason  observed,  not  only  that  the  present  Confederation  was 
dclic'iont  in  not  providing  for  coercion  and  punishment  against  delinquent 
Btate»,  but  argued  very  cogently,  that  punishment  could  not,  in  the 
imturc  of  tilings,  be  executed  on  the  States  collectively,  and  therefore 
tlmt  such  a  government  was  necessary  as  could  directly  operate  on  in- 
ilividiials*,  and  would  punish  those  only  whose  guilt  required  it. 

"  Mr.  Sherman  admitted  that  the  Confederation  had  not  given  sulli- 
cicut  power  to  Congress,  and  that  additional  powers  were  necessary; 
paiticularly  that  of  raising  money,  which,  he  said,  would  involve  many 
olIuT  i)owors.  lie  admitted,  also,  that  the  general  and  particular  juris- 
(liiHioiis  ought  in  no  case  to  be  concurrent.  He  seenivd,  however,  not 
to  111'  (lispdSL'd  to  make  too  great  inroads  on  the  existing  system;  in- 
tiiiiatiiig,  iis  one  reason,  that  it  would  be  wrong  to  lose  every  amend- 
nit'iit  by  inserting  such  as  would  not  be  agreed  to  by  the  States. 

"  It  was  moved  by  Jlr.  Keed,  and  seconded  by  Mr.  Charles  Cotes- 
\vi)illi  I'inckney,  to  postpone  the  third  proposition  last  otTered  by  Mr. 
liaiulolph,  viz.,  '  that  a  national  government  ought  to  be  established, 
consisting  of  a  supreme  legislative,  executive,  and  judiciary,'  in  order 
to  take  up  the  following,  viz. :  '  Ri'sulrcd,  Thiit,  iu  order  to  carry  into 
I'Secution  the  design  of  tlie  states  in  forming  this  Convention,  and  to 
accomplish  the  objects  proposed  by  the  Confederation,  a  more  effective 
jiovernment,  consisting  of  a  legislative,  executive,  and  judiciary, 
oiijrlit  to  be  established.'  Tiie  motion  to  postpone  for  tliis  purpose 
was  lost. 

"  Jlaasachusetts,  Connecticut,  Delaware,  South  Carolina,  ay,  i  ;  New 
Yolk,  Pennsylvania,  Virginia,  North  Carolina,  no,  4. 

'•  On  tlu'  question,  as  moved  by  Mr.  Butler,  on  the  third  proposition, 
it  was  resolved,  in  committee  of  the  whole,  '  that  a  national  govern- 
iiuiit  ouglit  to  be  established,  consisting  of  a  supreme  legislative,  ex- 
iciitive,  and  judiciary.' 

'•  Massaclmsetts,  Pennsylvania,  Delaware,  Virginia,  North  Carolina, 
Soiilli  Carolina,  ay,  (i ;  Connecticut,  no,  1  ;  New  York,  divided  (Col. 
Hamilton,  ay,  Mr.  Yates,  no.)"'  New  Jersey  and  the  other  States 
v.c  Ti'  not  represented.' 


■'  MudlsonPniMTs.   ElUot'sDebatOB, 
U  t'd.,  vol.  v,  pp.  132-134. 


"Yates'  Minutes,  Ibid.,  vol.  1,  p. 


392. 


80 


NATUllE  OF  CONSTITUTION. 


[chap.  it. 


The  Committee  of  the  Whole,  after  a  subsequent  discussion  in 
whii.'h  there  was  a  sliarp  conflict  between  the  hirger  anil  smaller 
States,  reported  to  the  Convention,  "thrt  a  national  government 
ought  to  be  establislied,  consisting  of  a  s  apreme  legislative,  execu- 
tive, and  judiciary  "; "  and  that  the  national  legislature  ought  to  con- 
sist of  two  bmnches,  the  membei-s  of  the  ii."st  branch  to  Imj  elected 
by  the  people  of  the  several  States,  and  tlios«  of  the  second  branch 
to  Ihj  chosen  by  the  individual  legislatures.* 

' '  That  the  natioiinl  legislature  ought  to  be  empowered  to  oujoy  the 
li'gishitive  riglits  vested  in  Congress  by  the- Confederation ;  and  more- 
over, to  legislate  in  all  cases  to  which  the  separate  States  are  iucompe- 
tonf,  or  iu  which  the  harmony  of  the  United  States  may  he  interrupted 
by  tlie  exercise  of  individual  legislation  ;  to  negative  all  laws  passed  by 
the  several  States  contravening,  in  tiie  opinion  of  the  national  legisla- 
ture, the  Articles  of  Union  or  any  treaties  subsisting  under  the 
authority  of  the  Union."" 

"  That  the  rights  of  suffrage  in  the  first  branch  of  the  national  legis- 
lature ought  not  to  be  according  to  the  rules  established  in  the  Articles 
of  Confederation,  but  according  to  some  equitable  ratio  of  representa- 
tion ;  namely,  in  jiroportion  to  the  whole  number  of  white  and  other 
free  citizens  and  inhabitants,  of  every  age,  sex,  and  condition,  includ- 
ing those  bound  to  servitude  for  a  term  of  years,  and  three-lifths  of  all 
other  persons,  not  comprehended  in  the  foregoing  description,  except 
Indians  not  paying  taxes  in  each  State."  '" 

"That  the  right  of  suffrage  in  the  second  branch  of  the  national 
Icgislatiu'e  ought  to  be  according  to  the  rule  established  for  the  first." 

"  Jh'solred,  That  a  national  executive  be  instituted,  to  consist  of  a 
single  person ;  to  be  chosen  by  the  national  legin'ature,  for  the  term  of 
seven  years;  with  power  to  carry  into  executirn  the  national  laws,  to 
a])p()iiit.  to  ofllces  in  cases  not  otherwise  provided  for,  to  be  ineligible 
a  second  time,  luid  to  be  removable  on  impeachment  and  conviction  of  ■ 
malpractices  or  neglect  of  duty ;  to  receive  a  fixed  stipend  by  which  he 
may  be  compensated  for  the  devotion  of  his  time  to  the  public  8er^•ice,  ■ 
to  be  paid  out  of  the  national  treasury."  "  I 

On  the  following  day,  —  ; 

"  Jlr.  Patterson  observed  to  the  Convention,  that  it  was  the  wish  ' 


'  MadiBon  Papers.  Elliot's  Dobates,  "  Ibid.,  p.  190. 

2il  0(1.,  vol.  V,  p.  189.  ">  Ibid.,  p.  190. 

»  Ibid.,  p.  189.  "  Ibid.,  p.  190. 


CHAP.  IT. 


17.] 


PROCEEDINCiS 


CONVENTION. 


8T 


as  the  wisli 


(if  several  deputations,  particularly  that  of  New  Jersey,  that  further 
time  might  be  allowed  them  to  contemplate  the  plan  reported  from  the 
Committee  of  the  Whole,  and  to  digest  (me  purely  federal,  and  contra- 
distinguished from  the  reported  plan.  He  said,  they  hoped  to  have 
siicii  11  one  ready  by  to-morrow  to  be  laid  before  the  Convention :  and 
tlic  Convention  adjourned,  that  the  leisure  might  be  given  for  the  pur- 
pose." " 

'I'iiis  j)liui  wiis  prcpiired  by  tho  deputiitioiis  from  ('onnecticut, 
New  York,  New  .leraey  and  Delaware,  with  the  aid  of  Luther 
Martin  of  Maryland.  The  motive  which  inspired  the  smaller 
States  was  the  fear  that  their  intiTCHts  would  Iw  injured  hy  the 
loss  of  tlieir  ecjual  right  of  suffrage.  Dickinson  of  New  Jereey 
.said  to  Madisftn:  — 

"  You  see  the  consequences  of  pushing  things  too  far.  Some  of  the 
members  from  the  small  States  wish  for  two  branches  in  the  general 
li'jiiHiature,  and  are  friends  to  a  good  national  government ;  but  we 
would  sooner  submit  to  foreign  power  than  submit  to  be  deprived, 
ill  both  branches  of  the  legislature,  of  an  equality  of  suffrage,  and 
llicreby  be  thrown  under  the  domination  of  the  larger  States."  " 

Tliis  plan,  which  is  known  as  "The  I'ropositions  from  New 
.Ici-sey,"  contains,  as  its  firat  resolution,  — 

"  That  the  Articles  of  Conft-'deration  ought  to  be  so  revised,  cor- 
rected, and  enlarged,  as  to  render  the  Federal  Constitution  adequate 
to  the  exigencies  of  government,  and  the  preservation  of  the  Union." 

It  gave  Congress  the  power  to  raise  revenues  by  a  tiiriff  on  im- 
ports and  postage,  "and  to  pass  acts  for  the  regulation  of  trade  and 
conimerce.  as  well  with  foreign  nations  as  with  each  other."  It 
]ii(ivi(led,  for  the  collection  of  other  revenues  by  the  reciuisition 
iinidiig  till'  States,  — 

"  Tlmt,  if  such  requisition  be  not  complied  with  in  the  time  specified 
tlicri'ln,  to  direct  the  collection  thereof  in  the  non-com|)lying  States,  and 
for  that  purpose  to  devise  and  pass  acts  directing  and  authorizing  the 

s;ian'." 

Neither  of  these  ])owei-s  was  to  bo  exercised  \vithout  the  con- 
.sciit  of  more  States  than  a  majority.     A  debate  then  ensued  upon 

1^  MniliHon  rnpers.  Elliot's  Debutes,  "  Ibid.,  p.  191. 

vol.  V,  p.  1!)1. 


88 


NATUJtE   OK    CONSTITUTION. 


[("HAr.  II. 


tlic  iidvantiipfes  of  tlio  different  systeniB,  in  which  that  recom- 
iiu'uded  by  tiio  C'onunittee  of  the  Whole  was  eilled  "uatiomil," 
and  the  propoNitions  of  New  Jersey,  "  federal."  The  distinction 
iK'tween  a  federal  and  national  government,  whieh  most  of  the 
nieml)ei>i  of  the  Convention  seemed  to  entertain,  was  thus  stated 
hy  (lovernor  liandolph:  — 

"The  tnie  (jucstion  is,  whether  we  shall  adhere  to  the  federal  plan 
or  introduce  tiie  national  plan.  The  insutlicieney  of  the  former  has 
been  fnily  displayed  Ity  tiie  trial  already  made.  There  are  but  two 
modes  by  which  tiie  end  of  a  fjencral  government  can  be  attained  :  the 
first,  by  coercion,  as  proposed  by  Mr.  Patterson's  plan ;  the  second,  by 
real  li'<i;ishition,  as  jiroposi'd  by  the  otiier  plan.  Coercion  lie  pronounced 
to  be  liiiiiriifticiilili',  exiictmici',  rriicl  to  iiidiriiliKilii.  It  tended,  also, 
to  liabitiiate  tlie  instruments  of  it  to  shed  the  blood,  and  riot  in  tlie  spoils 
of  tlu'ir  fi'Uow-citizens,  and  conscfiuontly  train  tlicni  up  for  the  service 
of  aiiiliition.  We  must  resoit,  tluTefori',  to  a  luiliduiil  Icijisldtion  orcr 
imiiriihnila;  for  wliicli  Congress  are  unlit.  To  vest  such  power  in 
them  would  be  blending  tlie  legislative  with  the  execiitivv  contrary  to 
the  received  maxim  on  tliis  siiliject.  Jf  tlie  union  of  these  j)owers, 
heretofore,  in  Congres  i  has  been  sufe,  it  lias  been  owing  to  the  general 
inipotency  of  that  body.  Congress  are,  moreover,  not  elected  by  the 
people,  but  by  the  legijihitui'es,  who  retain  even  a  power  of  recall. 
Tiiey  have,  tlierefoiv,  no  will  of  their  own ;  they  are  a  mere  diplomatic 
body,  and  are  always  obsequious  to  the  views  of  the  States,  who  are 
always  encroaching  ou  the  authority  of  the  I'nited  Stales.  A  provi- 
sion for  harmony  among  the  States,  as  in  trade,  naturalization,  etc.; 
for  crushing  rebellion,  whenever  it  may  rear  its  crest;  and  for  certain 
other  general  benefits,  must  be  made." 

"The  i)owers  for  these  purposes  can  never  be  given  to  a  body  iiuide- 
quate  as  Congress  are  in  i)oint  of  representation,  elected  in  the  mode 
in  which  they  are,  and  possessing  no  more  eonlideuce  than  they  do : 
for,  notwithstanding  what  has  been  said  to  the  contrary,  his  own  expe- 
rience satislied  him  that  a  rooted  distrust  of  Congress  ])i'etty  gen>jrally 
prevailed.  A  national  government  alone,  properly  constituted,  will 
answer  the  purpose  ;  and  he  begged  it  to  be  considered  that  the  present 
is  the  last  moment  for  c  jtablisliing  one.  After  this  select  experiment, 
the  people  will  yield  to  despair."  " 

Miidison  "..lid,  however:  — 

"Much   stress   has  been   laid  by  some  gentlemen  on  the  want  of 
"  Madisou  Papers.    Elliot's  Debutes,  2U  ed.,  vol.  v,  p.  1U8. 


s^"-] 


PROCEEDINGS   IN   CONVENTION. 


89- 


power  ill  the  Convention  to  piopose  any  other  than  n.  federal  plan.  To 
wliiit  had  been  answered  by  others,  he  would  only  add,  that  ncitlier  of 
ilii'  characteristics  attached  to  a  feileral  phm  would  support  this  ol)jec- 
tioii.  One  characteristic  was,  that,  in  afiideriil  ffovcrnnient,  tlie  power 
was  exercised  not  on  the  people  individiiall;/,  but  on  the  jwople  col- 
Iciiircl;/,  on  the  ntutes.  Yet  in  some  instances,  as  in  piracies,  captures, 
etc.,  the  existing  Confederacy  and  in  many  instances  the  amendments 
to  it  proposed  by  Mr.  Patterson,  must  ojierate  immediately  on  in- 
dividuals. The  other  characteristic  was,  that  a  federal  •lovornineut 
(li'rivi'd  its  appointments  not  immediately  from  the  people,  but  from 
the  States  whicli  ihey  respectively  composed.  Here,  too,  were  facts  on 
the  other  side.  'i  two  of  the  states,  Connecticut  and  Rhode  Island, 
tiie  delegates  to  Coi  'iress  were  chosen,  not  by  the  legislatures,  but  by 
the  people  at  large ;  :ind  the  plan  of  Mr.  Patterson  intended  no  change 
ill  this  particular."" 

Dickinson  from  New  Jersey  mnve<l  to  j)ostpone  the  first  resolu- 
tion of  Mr.  Patterson's  i)laii  in  vrder  to  tiike  up  tho   following:  — 

•'  That  the  Articles  of  Confederation  ought  to  be  revised  and  amended, 
■■■  ■)  as  to  render  the  government  of  the  United  (States  adecpiate  to  the 
exigencies,  the  preservation,  and  the  prosperity  of  the  Union."'" 

'J'iie  postponement  was  agreed  to  Ly  ten  Stivtes,  Pennsylvania  be- 
ing (livi(U'(l;  but  the  resolution  after  (li'bato  was  dcfeiited  b^-  six 
Stales  to  four.  Conneetieiit,  Xow  Vcn'k,  Mew  Jersey,  Deknvan'.  ay, 
4  ;  Ma.ssachiisetts,  Pennsylvania,  A'irglnia,  North  Carolina,  South 
Carolina,  (ieorgia,  no,  0;  .Maryland,  divided.''  The  ("ominittec  of 
the  A\'iiole  at  whicii  the  question  had  l)een  discussed,  finally 
agiced  to  rise  and  report  the  propositions  as  previously  adopted 
without  alteration.  Massachusetts,  Connecticut,  Pennsylvania, 
N'irginia,  North  Carolina,  South  Carolina,  Ceorgia,  ay,  7;  New 
V.)rk,  New  Jersey,  Delaware,  no,  3;  Maryland  divided.'* 

'i'ho  liret  resolution  "  that  a  national  government  ought  to  be 
istablished,  eoiisistiug  of  a  supreme  legislative,  executive  and 
jiiiliiiary,"  was  then  taken  up  in  the  Convention. 

"  ^[r.  Ellsworth,  seconded  by  Mr.  Gorham,  moves  to  alter  it,  so  aa 
to  run  '  that  the  government  of  the  United  States  ought  to  consist  of  a 
siiiirunie  legislative,  executive  and  judiciary.'     This  alteration,  he  said, 

"  Mudlson  Papurs,  Elliot's  Debates,  "  Iliiil.,  p.  20G. 

2.1  .'il..  vol.  V,  p.  20(5.  »  IblU.,  pp.  211,  212. 

J'  Ibid.,  p.  11)8. 


110 


NATITKE   OF   CONSTITUTION. 


[OHAT.  II. 


i¥oul(l  drop  the  word  nnlinnal,  and  retain  the  proper  title  '  Ww  I'niteil 
St:itos.'  lie  could  not  admit  tlie  doctrine  that  a  breach  of  any  of  tin- 
I'Vdt'nil  Articles  could  dissolve  the  whole.  It  would  be  highly  danjj;i'r- 
ouH  not  to  consider  the  Confederation  as  still  subsisting.  lie  wished, 
fllso,  the  plan  of  the  Convention  to  go  forth  as  an  amendment  of  tlif 
Articles  of  the  Confederation,  since,  under  this  idea,  the  authority  of 
the  legislatures  could  ratify  it.  If  they  are  unwilling,  the  people  will  he 
«o  too.  If  the  plan  goes  forth  to  the  people  for  ratification,  several 
succeeding  conventions  within  the  States  would  be  unavoi<lable.  He 
■did  nut  liite  these  conventions.  They  were  better  fitted  to  pull  down 
than  to  build  up  constitutions. 

"Mr.  liandolph  did  not  object  to  the  change  of  expression,  but 
apprised  the  gentleman  who  wished  for  it,  that  he  did  not  admit  it  fur 
the  reasons  assigned ;  particularly  that  of  getting  rid  of  a  reference  to 
the  people  for  ratification. 

"  The  motion  of  Mr.  Ellsworth  was  acquiesced  in,  nem.  con."  " 

Siil)sequently,  when  the  clause  defining  treason  was  considered, 
Luther  Martin  moved  an  amendment. 

"  Provided,  that  no  act  or  acts  done  by  one  or  more  of  the  States 
:flgainst  the  United  States,  or  by  any  citizen  of  any  one  of  the  United 
States,  under  the  authority  of  one  or  more  of  the  said  States,  shall  be 
<lcempd  treason,  or  punished  as  such ;  but  in  case  of  war  being  levied 
by  one  or  more  of  the  States  against  the  United  States,  the  conduct  of 
each  party  towards  the  other,  and  their  adherents  respectively,  shall  be 
regulated  by  the  laws  of  war  and  of  nations." 

Tlie  proposition  seems  to  have  had  no  other  supporter.^ 
Tim  fact  that  in  the  Federal  and  State  conventions  speakers 
repudiated  tiie  idea  of  the  application  of  coercion  against  tlic 
States  does  not  support  the  view  that  the  Federal  (Joverninunt 
cannot  suppress  a  rebellion  supported  by  the  officers  and  people 
of  a  State. 

It  ai)pei\rs  from  these  debates  as  well  as  elsewhere  in  tliese 
proceedings,  that,  forewarned  by  the  experience  of  the  Confedera- 
tion, when  States  refused  obedience  to  the  laws  of  Congress,  and 
suggestions   were    made  of    their   coercion    by  armed    force,  tin; 


"  Jliidisoii  Tiipers,  Elliot's  Debates, 
2d  0(1.,  vol.  V,  p.  214. 

'•»  It  is  only  mentioned  in  Martin's 
Letter   to   tbo    Maryland    Legislature. 


ElliofH  Debates,  2d  cd.,  vol.  1.  p.  38;:. 
No  reference  to  It  is  to  be  found  in 
eitlier  the  Journal  or  any  of  the  reports. 
It  probably  was  not  even  seconded. 


V'-] 


PUOCKKDlSdS    IX    ('(t.NVKXTION. 


91 


(KU^'ivtes  intemled  to  fninu!  ii  new  f(frin  of  ffovornmcnl  wliit^li 
niiiilil  enforce  tlie  Keileml  Iiuvh  by  treating  the  attempted  liostilc 
St;iti'  lejfislation  as  a  nullity  and  applyinfj  force,  not  to  tlie  Stiite 
(Tovcrnnient,  but  to  the  individual  citizeuH  of  the  State  wlio  re- 
sisted, even  thouph  they  niifrht  he  State  oilicials. 

It  was  said  by  Ellsworth,  in  the  Connectieut  Convention:  — 

"  \V(>  Beo  liow  necessary  for  the  Union  is  a  eoercivc  principle.  No 
mail  i)retcii(l8  tlie  contrary;  we  nil  sec  and  feel  this  necessity.  The 
only  (luestion  is,  SImll  it  be  a  coercion  of  law,  or  a  coercion  of  arms? 
There  is  no  other  ))ossil)le  alternative.  '\Viiere  will  those  who  oppose 
cdcreion  of  law  come  out?  AVhere  will  tiiey  end?  A  necessary  eonse- 
(liii'iico  of  their  principles  is  a  war  of  the  States,  one  against  the  other. 
I  iiiii  for  coercion  by  law  —  that  coercion  which  acts  only  upon  de- 
liiiijiu'nt  individuals.  Tliis  Constitution  does  not  nttein|)t  to  coerce 
((((vereign  bodies,  States,  in  their  political  capacity." '•" 

So  Madison  said  in  the  Virginia  Convention,  when  defendinrj 
till'  clause  wjiich  gives  to  Congress  power  concurrent  with  the 
States  to  call  forth  the  militia  to  suppress  in.surreetions  and  repel 
invasions :  —  ^ 

"  A  concurrence  in  the  former  ease  is  necessary,  because  a  %vbo1o  State 
may  be  in  insurrection  against  the  Union.'"" 

Luther  Martin  wrote  to  the  Maryland  Convention :  — 

"  The  time  may  come  when  it  shall  be  the  duty  of  a  State,  in  order 
to  preserve  itself  from  the  oppression  of  the  general  government,  to 
iiiive  recourse  to  the  sword  ;  in  wliieh  case,  the  proposed  form  of  gov- 
ornment  declares  tiiat  the  State,  and  every  one  of  its  citizens  who  acts 
under  its  authority  are  guilty  of  a  direct  act  of  treason."  " 

It  seems  plain,  therefore,  that  tlio  Convention  determined,  after 
full  discussion,  to  adopt  a  plan  national  in  form  ;  but.  to  conciliate 
prejudice,  avoided  the  use  of  the  name.  Since  then  until  late 
years,  writers  judicial,  political,  and  academical  have  usually 
csclicwed  tlie  word,  national,  and  substituted  for  it  "  federal." 
Altliough  since  the  Civil  War  the  term.  National  Government, 
lias  come  into  common  use,  we  still  ordinarily  speak  of  Federal 

'^' Elliot's  Debates,  2d  ed.,  vol.  II,  «  Coustitution.  Articln  I,  SocUou  8. 

p.   l'.)7.     SCO  Iho    remarks  of   R<)(,'(-r  *i  Elliot's  Debates,  2d  od.,  vol.  ill, 

Shc'iinan  in  tlio  Fodernl  Convention.  p.  424. 

Ibid.,  vol.  v,  !>.  450.  •»  Ibid.,  vol.  1,  p.  382. 


92 


THE   IMtEAMIlLE. 


[chap,  II. 


liiiu'ticn  in  the  Fedonil  t'oflrts.  IJut  as  appears  by  tlie  Coiifjics- 
sidiiiil  I'L'Holution  quoted  at  the  beginning  of  this  section,  as  well 
as  in  the  debates  in  the  Convention,  the  phrase,  fedeml,  is  not 
inconsistent  with,  national. 

tt  IH.  History  of  the  Pronmble. 

The  change  in  the  nature  of  the  government  of  the  United 
States  from  the  league  end)raced  in  tlie  Articles  of  Confederation 
to  a  Constitution  indissoluljle  by  law  upj)eaiM  not  only  in  the 
manner  in  which  the  Constitution  operates,  but  also  in  its  pre- 
amble. 

"We  tuk  PEori.r,  of  tlie  I'liited  States,  in  onli-r  to  form  a  more 
pert'i'Ct  Union,  estnlili.sli  .luntioi',  insure  douiestie 'rnui<iuiility,  provide 
for  tlse  eoninion  defcnci',  promote  Ilie  iiieMoral  Wdftire,  and  secure  the 
Hlessinjis  of  I.ilierly  to  oiirsi'lves  and  our  I'osterity,  do  ordain  and 
establish  this  ("ossmLTios  for  the  United  States  of  America." 

The  preand)le  to  the  instrument  which  the  Constitution  id)ro- 
gated  is  as  follows  :  — 

"Articles  of  Confederation  and  Perpetual  Union  between  (he  States 
of  New  Hampshire,  Massaelmsetts,  Hliode  Isitind  and  I'rovidenee  Plan- 
tations, Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware, 
^Maryland,  Virginia,  Nortli  Carolina,  South  Carolina,  and  Georgia. 
The  third  of  the  Articles  of  Confederation  is  :  — 
"  The  said  States  hereby  severally  enter  into  a  firm  league  of  friend- 
shii)  with  each  other,  for  tlieir  conunon  defence,  the  security  of  their 
liberties,  and  their  mutual  and  general  welfare,  binding  themselves  to 
assist  each  otiier,  against  all  force  olTered  to,  or  attacks  made  upon 
them,  or  any  of  them,  on  account  of  religion,  sovereignty,  trade,  or 
any  other  pretence  whatever." 

The  second  Article  of  the  New  England  Confederation  of  1G43 
provided  that : — 

"The  said  United  Colonies,  for  themselves  and  their  posterities,  do 
joyntly  and  severally,  hereby  enter  into  a  flrme  and  perpetunll  league 
of  friendship  and  amytie,  for  offence  and  defence,  mutuall  advise  and 
suceoiu',  upon  all  just  occatious  both  for  preserveing  and  propagateing 
the  truth  and  liberties  of  the  Gospel,  and  for  their  owne  mutuall  safety 
and  wellfare."  ' 

§  18.  1  Preston's  Documents  lUustrativo  of  American  History,  p.  88. 


Si'^0 


THE  PIlEAMIUiR. 


98 


Till'  (ii'st  appearance  of  the  proiiniblo  in  the  reports  of  tlic  Con- 
vt  iitidii  in  in  Chiirk'H  Pinckney's  phin  as  now  prescrviMl,  where  it 
is  in  till"  same  form  as  in  the  draft  of  the  Coninlittee  of  Detail." 
His  plan  was  referred  t(t  that  Connnittee  tojjetlier  with  the  resolu- 
tions s|ieeifieally  adopted,  of  which  the  first  was : — 

"  HcKolri'il,  thut  the  j^overnrntnt  of  the  United  States  ought  to  con- 
sist of  11  suproMic  legislative,  judiciary  and  executive."* 

In  the  rejjort  of  the  Committee    of   Detail,  the  preamble  ap- 

[iiMicd  :  — 

"  \\\',  the  people  of  the  States  of  New  Hampshire,  Massaeliusetts, 
KliDili!  Island  and  Providence  Plantations,  Connecticut,  New  York, 
New  .Tersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  .South  Carolina,  an<l  (ieorgia,  do  ordiiin,  declare,  and  estab- 
lish, the  following  Constitution  for  the  government  of  ourselves  and  our 
posterity  :  — 

"Article  I.  The  stylo  of  the  government  shall  be,  'The  United 
Slates  of  America.'  "  * 

At  that  time  it  had  not  In^en  determined  to  ignore  that  part  of 
the  Articles  of  ("onfcdemtion  which  required  unanimous  consent 
t(p  any  aniendmcnt  of  tlie  same.^  After  the  Convention  liad  de- 
<'i(le(l  tiiat  a  ratification  by  nine  States  should  l)e  sufficient  to 
est;il>lish  tlie  Constitution  between  themselves,  the  Conunitteo  of 
Style,  without  any  apparent  discussion  of  tlie  subject  in  tlie  Con- 
vention, changed  the  preamble  to  its  present  form.  The  substitu- 
tiiiii  of  the  phrase,  "people  of  the  I'nited  States,"'  for  "the  jjcople 
ol'  tlie  States  of  New  Hampshire"  and  the  other  twelve  States, 
li;il  evidentl}-  no  signification  except  to  make  it  clear  that  the 
I'liitcd  States  might  consist  of  a  less  nundxir  than  the  original 
tliirteen. 


''  Ma<lif">n  Piipors,  Elliot's  Dolintes, 
2i\  I'll.,  vol.  V,  ]).  129.  In  tlio  r  pinion 
<'f  Mr.  Sliidison,  this  copy  eoiilHlns 
iiKiny  altoriitiona  nuido  liy  tlio  other 
in  llio  oriniunl  piipor  during  tlio  prog- 
iisrt  of  tlio  Oinvontion.  (Appendix, 
Xu.  2,  to  Madison  Papers,  Elliot's  De- 


bates, 2d  od.,  vol.  v,  p.  578,  quoted 
before,  §17,  nolo  4.)  The  in-eamble 
seoniH  nioro  likoly  to  be  correct  than 
any  other  ]iart  "f  the  paper. 

« Ibid.,  p.  :r,  . 

*  Ibid.,  pp.  .170,  377. 

'  Articles  of  Confederation,  XIII. 


94 


THi:   I'KKAMULK. 


[CIIAP.  II. 


ti  10.  HiKiiiflfii'.ft*  of  tli4>  IMiriiMO,  "Wi'.  tlio  ]><>o|tl«>  of  tlio 
I'liitcd  NtiitCH." 

From  the  use  of  tho  pliniHe,  "  Wo  tlio  peojilo  of  tlie  United 
Stiiti'H."  soiiii!  wiitoin  (if  R'Hiu'i'talilo  autliority  luive  arfjucd  thitt 
till-  Constitution  was  adoptcil  liy  tlie  in'oplc  of  tliii  lTriitt'(l  States 
at  iarj^i'.  and  not  liy  the  people  of  tliu  dillViviit  Stiites  whieli 
ratitied  the  Constitutidn. 

The  In-Ht  Htateniunt  of  this  view  is  that  of  Welwtei':  — 

"  It,"  the  Con.  (ion,  "  (h-cliires  tiiiil  It  is  ordiiinod  uiul  eHtnbllHlicd 
liy  tiie  I'ocjili!  of  the  I'liited  Str.tes.  So  far  from  Baying  that  it  is 
establi>iiied  liy  tli.?  governments  of  the  several  States,  it  does  not  even 
say  tiiat  it  is  estalilislied  by  the  people  of  tlic  several  States.  Hut  it 
lironoances  that  it  is  established  by  the  people  of  the  United  States  in 
tlie  .i(;<;rejj;ate.  iJoubtless  tlic  jieople  of  the  several  States  taken  col- 
'.■ctively  eonstittite  the  jieople  of  the  rnitc<l  States,  but  it  is  in  this 
tlieir  collective  capacity,  it  is  as  all  the  people  of  the  Cnited  States  that 
they  establish  the  Constitution."' 

Tho  history  of  the  formation  and  ratification  of  tho  Constitution 
contradicts  timso  statements.  As  orifiiiially  drawn  liie  preamble 
ran,  "  Wo  the  people  of "'  the  thirteen  States,  oaeh  of  which  was 
specifically  named.  It  was  then  intended  not  to  violate  the 
Articles  of  Confederation,  hut  to  rccjuirc  unaiumous  consent  to 
the  chan};re.  When,  at  a  later  session,  tlu;  (  onvcntiou  ventured 
to  require  the  assent  of  hut  nine  States  to  put  the  new  poverii- 
ment  in  force,  the  language  was  altered  so  that  it  might  serve  in 
such  a  case ;  and  no  other  intent  was  stiggi-sted  or  contcmplatetl. 
The  States  did  accede  to  the  Federal  Constitution.     Each  State 


§  1!).  >  Wobstor's  lloply  to  Hnyno. 

It  Is  thurt  jiiit  l).y  tlio  lilstoriim 
Molloy:  "Tho  roiiHlittition  wiis  not 
ilrtiwn  up  l>y  tlin  Smtc.-i,  U  was  not 
proiiiulKatoil  In  thniiiinioof  IhoStiitOH, 
it  WHS  not  nitlllcd  l>y  tlic  Ktiitcs.  Tho 
Stiitos  nover  acocdi'd  to  it,  and  iiosspbs 


pxprt'Hsly  clioson  fnr  tlio  purjiosi" 
wllliia  ciich  Slato,  indcpcndoTitly  (if 
till)  Statu  jjoviTiinionlA,  iifdr  tlio  iiio- 
jootliiid  liccn  riainc'd."  (tTolin  Ltitlimp 
Motley's  li'Kcr  to  tho  Limilon  Tlnn-s. 
RelicUioM  K.'conl,  vol.  i,  p.  211). )  Tlio 
most  eliilioriitoarHUiiien  tin  Us  support 


no  jK)wer  1o  Bocodo  from  it.     It  was  is  in   tho   Appendix  to  vulunio  ix  of 

'ordaiupd   and  establisliod'  ovi-r  tlio  Dano's  Aliridt,'ment,  wMcli  was  jiuli- 

Slutos   by  a   power  snporior    to   tho  lisln"!!    iMiiiiodliiloly  after  tho  dobat" 

Slates  — by  the  p(H)plo  of  tho  whole  between     Ilayno    and     Welisler    on 

linil  in  their  a:,'KreKato  capacity,  aet-  Footc's  Ilesoiiitions.     S^e  ali-o  Story 

iut;  through  couvuntiuuB  of  delegates  oa  tliu  CoUBtltutioL,  §§415-418,  4C3. 


§1!).] 


"\VK  TIIK   I'KOl'MC. 


9& 


(  (iiivciitiori  iu;tiMl  iiiiil  (■litiinL-<l  to  net  only  in  tlie  naiiu)  of  llie 
|iimi|p1c  of  its  own  Stiit(!.''' 

'i'lif  ri'iisoiiH  for  I'fijuirin^  n  rutillcution  liy  tlie  ))eoj)lu  of  vm-.U 
St;itf  instciul  of  tilt!  State  Ic^'isliitnieH  were  principully  tlii» 
',q;ivi'  (loiiiit.s  as  to  tlio  power  of  the  State  lefrislatnres  to  delefjiiUi 
III  Coii^'rt'ss  part  of  the  Icfjislative  powera  vested  in  them  l>y  then* 
rts|iritivc  petiplfs;  Itnt  also  the  intention  to  deprive  those  lepis- 
liiliii'i's  of  all  chiini  to  the  ri),dit  of  secession,  and  to  ^five  to  th  • 
( 'onstitntion  the  sanction  of  a  fnndaniental  law  ordained  h^  all 
till'  ]i('(ipl(!  upon  whom  it  operated. 

'I'lu'su  views  "-ire  thus  expressed  hy  .Madison:  — 

"  iMr.  Madison  thought  it  elear  that  tiio  lc<;ishitiircH  were  iiiponipeteiil 
to  till'  roposed  ciiiiiiiies.  These  elianges  would  iimke  essential  iniunds 
on  tliu  State  Constitutions;  and  it  would  lie  a  novel  and  dangcrouii 
(loctriiie,  tiuil  a  ley;islatui'i!  could  ehuM};e  the  Constitution  under  wliieit 
it  licld  its  existence.  'I'lu're  niijj;iit  indeed  lie  some  Const itutious  with- 
in tlif  I'nion,  which  had  niveii  n  power  to  the  h-<;islature  to  concur  in 
alterations  of  the  federal  eouipaet.  Hut  there  were  certainly  some 
wlilch  iiad  not ;  and,  in  the  ease  of  these,  a  ratillcati<in  unist  of  n>  ees- 
sity  lie  olitained  fioiu  the  people,  lie  couKidered  the  dilTcrenee  he- 
twcen  a  system  founded  on  the  le<jislature»  only,  and  one  founded  on 
till'  piMipU",  to  he  the  true  differeiK'c  between  a /('<(r///p  or  <rP'</i/,  nnd  a 
iiiiislihifiDii.  The  former,  in  point  v(  moral  i>bliijuti<>ii,  might  he  as  in- 
violalile  as  the  latter.  In  point  of  politiail  ojwrdtion,  there  were  two 
inipoi'taiil  distinctions  in  favor  of  the  latter.  First,  a  law  violating  a 
treaty  ratilied  by  a  pre-existing  law  might  be  respected  by  the  judges* 
as  a  law,  though  an  unwise  or  perlidious  one.  A  law  violating  n  con- 
stitution established  by  the  people  themselves  would  be  eimsidered  by 
ilie  judges  as  null  and  void.  Secondly,  the  doctrine  laid  down  by  the 
law  of  nations  in  the  case  of  treaties  is,  that  a  breach  of  any  one  article 
!iy  any  of  the  partici'  frees  the  other  parties  from  their  engagements. 
In  the  case  of  a  union  of  people  under  one  constitution,  the  natin'e 
of  the  fact  has  always  been  nnderst<XMl  to  exclude  such  an  interpre- 
tation. Comparing  the  two  modes,  in  point  of  expediency,  he  tiiought 
all  the  considerations  which  recommended  this  Convention,  in  prefer- 
ence to  Congress,  for  proposing  the  reform,  were  in  favor  of  State 
Conventions,  in  preference  to  the  legislatures,  for  examining  and  adopt- 
ing it."« 


-  f!«pra,  8  13.     Seo  the  Fedoralist, 
N<i.  xxxix,  (juotccl  infra,  §  28. 


»  Madlsnn  Pnpers,  Elliot's  Dcbat«8^ 
2(1  eU.,  vol.  V,  pp.  355,  356. 


M 


THE  PBEAJSIBLK. 


[chap.  II. 


8  20.  Siffiiifleance  of  the  Plirnse  "  to  form  a  more  perfect 

Union." 

The  concluding  Article  of  Confederation  provided  that  "the 
Union  shall  he  perpetual."  Patterson  claimed  in  the  Federal 
Convention,  that  no  State  could  lawfully  withdraw  from  it  with- 
out the  consent  of  the  rest :  — 

'•  The  Confederation  is  in  the  nature  of  a  compact ;  and  can  any  State, 
nnlesa  by  the  consent  of  the  whole,  either  in  politics  or  law,  witiulraw 
their  powers?  Let  it  be  said  by  Pennsylvania  and  the  other  large  States 
that  they  for  tlie  sake  of  peace  consented  to  the  Confederation ;  can 
«ho  now  resume  her  original  right  without  the  consent  of  the  others?"  ' 

In  a  letter  to  Congress  hy  Washington,  written  by  the  unani- 
mous order  of  the  Convention  :  — 

"  In  all  our  deliberations  on  this  subject  we  kept  constantly  in  our 
view  that  which  appears  to  us  tlie  greatest  interest  of  every  true 
American,  the  consolidation  of  our  Union  —  in  which  is  involved  our 
prosperity,  felicity,  safety,  perhaps  our  national  existence."  " 

It  is  clear  that  it  was  the  intention  of  the  Constitution  that  the 
former  union  shoidd  continue  more  perfect,  more  consolidated, 
and  he  perpetual.^ 

"  The  Union  of  the  States  never  was  a  purely  artificial  arbitrary  rela- 
tion. It  began  among  the  Colonies,  and  grew  out  of  common  origin, 
nuitufll  sympathies,  kindred  principles,  similar  interests,  and  geographi- 
cal relations.  It  was  confirmed  and  strengtiiened  by  the  necessities  of 
war,  and  received  definite  form,  and  eliaracter,  and  sanction  from  the 
Articles  of  Confederation.  IJy  these  the  Union  was  solemnly  declared 
to  '  be  perpetual.'  And  when  these  Articles  were  found  to  be  inade- 
quate to  the  exigencies  of  the  country,  the  Constitution  was  oixlained 
*to  form  a  more  perfect  Union.'  It  is  didicult  to  convey  the  idea  of 
judissoluble  unity  more  clearly  than  by  these  words.  What  can  be  in- 
<lissoluble  if  a  perpetual  I'nion,  made  more  perfect,  is  not?  But  the 
perpetuity  and  indissolubility  of  tlie  Union  by  no  means  implies  the 
loss  of  distinct  and  individual  existence,  or  of  the  right  of  self- 
«:overnment  by  the  States.  Under  tlie  Articles  of  Confederation  each 
Jitale  retained  its  sovereignty,  freedom,  and  indi'pendence,  and  every 


5  20,  1  Yates'  Minutes,  Elliot's  De- 
bates, 2d  od.,  vol.  Iv,  p.  413. 


^  Mudlson  Papers,  Elliot's  Debates, 
2d  ed.,  vol.  v,   pp.  5,'tr),  HSC. 

«  See  Texas  v.  White,  7  Wall.  7(K). 


s^l-] 


"TO    KSTAIIMSH    .irSTICK. 


07 


]i()«('r,  jurisdiction,  and  right  n6t  espreasly  delegated  to  the  United 
Sl:it('s.  Under  the  Constitution,  tiiough  the  jwwera  of  the  Slutts  were 
much  restricted,  still,  all  powers  not  delegated  to  the  Uniteil  .States, 
nor  jirohibitcd  to  the  States,  are  reserved  to  the  States  respectively,  or 
to  the  people.  And  we  have  already  had  occasion  to  remark  at  this 
term,  that  'the  people  of  each  State  compose  a  State,  having  its  own 
govcnnncnt,  and  endowed  with  all  the  functions  essential  to  separate 
an<l  independent  existence,'  and  that  '  without  the  States  in  union, 
tJKMv  could  lie  no  such  political  luxly  as  the  United  States.'  Not  only, 
therefore,  can  there  be  no  loss  of  separate  and  independent  autonomy 
to  the  States,  through  their  union  under  the  Constitution,  but  it  may 
he  not  unreasonably  said  that  the  preservation  of  the  States,  and  the 
nmintenanee  of  their  governments,  are  as  nuich  within  the  design  and 
care  of  th  Constitution  as  the  pre8er''ation  of  tl;e  Union  and  the  main- 
tcn;iiice  of  the  National  fiovernnient.  The  Constitution,  iu  all  its  pro- 
visions, looks  to  an  indestructible  Union,  composed  of  indestructible 
Stiiti's."  * 

Every  clause  'n  the  Constitution  in  wlii^h  it  difl'ered  from  the 
Articles  of  Confederation  wan  designed  to  make  the  Union  "more 

licrtVct." 

$$  21.  Nigiiiflcance  of  the  Phrase,  "to  E.stnblish  Justice." 

Tlie  phrase  "to  establisli  justice"  is  not  found  in  the  Articles 
ol  confederation.  One  of  the  chief  evils  which  called  the  Federal 
Convention  together  was  the 

"necessity  of  providing  more  effectually  for  the  security  of  private 
rijrlits,  and  the  steady  dispensation  of  justice.  Interferences  with  these 
were  evils  which  had,  more  perhaps  than  anything  else,  produced  this 
Convention.  Was  it  to  be  supposed  that  republican  .»erty  could  long 
exist  under  the  abuses  of  it  practiced  in  some  of  the  States?"' 

There  was  no  Federal  court  to  enforce  rights  of  property 
s('<'urc(l  i)y  treaties  and  to  hold  invalid  acts  of  State  legislatures 
in  coal  avention  of  treaty  rights  or  for  the  prevention  of  the 
codcction  of  debts  due  domestic  as  well  as  foreign  creditors. 
For  this  reason,  in  order  to  establish  justice,  there  was  inserted 
in  tlic  Constitution  an  article,^  providing  for  courts  of  the  United 


*  Cliief  Justice  Chnso  in  Texas  i'. 
AVhii,.,  7  WoU.  700,  724-725. 

i'il.  I  Madison  In  the  Fedorol Con- 


vention.  Madison  Papers,  Elliot's  De- 
bates,  vol.,  v,  p.  162. 
>  Article  III,  infra. 


m 


Tin-:  iMti-.AMiti.i;. 


[CHAI'.  ir. 


Stiitt's;  tlie  (liu'ctiou  tliiit  -tliis  Coiistitntiou,  and  Cio  Laws  of 
the  L'liited  Stutes.  wliii'h  slmll  l)e  nuule  in  I'uisuiince  tlieri'of ; 
and  all  'i'reaties  made,  or  wliifh  shall  be  made,  under  the  Authority 
of  the  United  States,  shall  he  the  Suim-me  Law  of  the  Land;  and 
the  Judjfos  in  every  State  shall  he  hound  therehy,  anything  in  the 
Constitution  or  Laws  of  any  State  to  the  Contrary  notwithstand- 
ing ;  "  *  and  the  inhibitions  against  the  enactment  by  the  States  of 
tender  laws,  bills  of  attainder,  and  laws  imiiairing  the  obligations 
of  eontraets.^  The  prohibitions  to  the  United  States,  as  well  iis 
the  States,  of  the  enactment  of  bills  of  attainder  and  ex  j)08t  faeto 
laws,''  and  the  recognition  of  debts  contracted  by  the  United 
States  before  the  adoption  of  the  Constitution,  were  also  designed 
for  this  end.  The  beneficial  effects  of  these  ])i'ohibitions  cannot 
be  overestimated.* 


$i  22.  SiKitifleniico  of  tlio  Plirnse  "t<»  Insure  cloinestic 
Ti-aiuiuillitj." 

The  Articles  of  Confederation  jirovided  no  means  tor  the 
insurance  of  domestic  tranciuillity.  Congress  could  not,  without 
the  consent  of  the  States,  raise  the  money  to  arm  and  to  i)ay  an 
army  with  which  to  j)rotect  itself  from  domestic  insult.  It  was 
at  one  time  driven  from  the  seat  of  government  by  a  mutiny  of 


'  Article  VI,  mfrii. 

*  Article  I,  (}  1(1,  infra. 

»  Article  I,  S§  i)  mid  10,  infra. 

•  "  Tlic  fouiidens  of  our  dcinocr.itic, 
or  rather  republican  Institutioii.s  were 
ncitlier  vlKionuries  iior  sociitlists.  It  is 
among  tlic  eternal  lessons  of  liistory, 
wlilcli  tliey  well  knew,  that  the  nia,sse,s 
of  the  people  were  subject  to  the  in- 
fluence of  supposed  temporary  interests, 
and  of '  violent  and  c.isual  forces '  which 
might  be  in  conflict  with  their  own  vital 
and  perinaiuMit  welfare,  Uealizins  this 
truth,  and  the  necessity  of  safe-guarding 
these  vital  and  permanent  interests,  the 
founfii'rs  of  our  political  and  legal  in- 
stltntions  devised  -  and  the  device  has 
been  supposed  to  be  the  crowning  proof 
of  their  wisdom  —  the  American  polity 
of  constitutional  restraints  upon  all  the 
departments  of  the  guvernmouts  which 


the  people  established.  All  the  original 
States  undertook  to  secure  the  inviola- 
bility of  private  propeity.  This  tlicy 
did,  either  by  e.ttracting  and  adopting, 
in  tonus,  the  famous  thirty-ninth  arllcle 
of  Magna  Charta,  securing  the  people 
from  arbitrary  imprisonnu-nt  and  arbi- 
trary spoliation,  or  by  claiming  for 
themselveB,  compendiously,  all  of  the 
liberties  and  riglits  set  forth  in  the 
Great  Charter."  Argument  of  Hon 
.lohn  !•',  Dillon,  in  Ueagan  v.  Farmers' 
Jjoan  .t  Trust  Co.,  154  U.  S,  mV2,  ,"57!). 
"  These  have  been,  indeed,  the  great 
triumplis  of  our  popular  system  of 
government,  for  these  were  supposed  to 
bo  its  vulnerable  spots.  Dislieliever,-* 
lu  republican  institutions  had  predicted 
early  shipwreck  on  these  rorks,  and 
when  it  came  not  they  simply  posi|  oiicd 
tlie  period  of  fulfilnient,"     IMd.,  p,  381. 


SS  ^^.  24.] 


"  COMMON    DKi'KNHE. 


99 


ciirlity  .soldiers.'  Tlie  power  of  taxation  wliicli  is  irranted  in  tlio 
( 'oiistiUUion  was  designed  for  that  as  well  as  other  ends,  ("on- 
jj;r('ss  lUKier  the  Confederation  was  similarly  nnahle  to  assist  in 
siiiipressing  reitellions  within  the  individual  States.  Even  its 
rii.;lit  to  ilo  so,  did  it  have  the  means,  rested  on  a  forced  con- 
stiiiction.-  i-'or  this  reason,  there  was  inserted  the  express 
[iiovision  that 

"The  United  States  shall  guarantee  to  every  State  in  this  Union  a 
ivpuljlican  form  of  governiiieut,  and  shall  protect  each  of  them  against 
invasion ;  and  on  application  of  the  legislature,  or  of  the  executive 
(when  the  legislature  cannot  he  convened) ,  against  domestic  violence."" 

t^  2.'J.  Si(;niflcniicc  of  the  Phrase,  "to  provide  for  the 
coiiiiiioii  Defense." 

Provision  for  the  "connnon  defense"  was  one  of  the  express 
olijects  of  the  Confederation  of  tlie  United  States,*  and  was  more 
ellieiently  secured  by  the  Constituticn. 

'Die  New  Enjrland  Confederation  was  formed  "  for  offence  and 
defence,  nmtuall  advise  and  succour."  ^  The  Constitution  fur- 
nisiies  new  means  for  that  purpose  in  its  provisions  for  raising 
armies  ^  and  taxation.* 


{$  24.  Signifleaiice  of  the  Phrase,  "  to  promote  the 
(general  Welfare." 

The  United  Colonies  of  New  Eufrland  confederated,  amongst 
other  things,  "  for  their  own  mutuall  safety  and  welfare."  '  'J'lie  Ar- 
ticles of  Confederation  of  the  United  States  expressed  the  object 
of  the  league  as  for  "  their  mutual  and  general  welfare."  ^  Tlie 
word  "  general  welfare  "  was  used  in  the  Constitution  as  broader 
tiiaii  and  inclusive  of  the  word  "  mutual."  The  clause  granting 
Congress  the  power  of  taxation  limits  its  exercise  "to  pay  tiie  debts 
and  provide  for  the  common  defense  and  general  welfare  of  the 


III. 


S  22.  1  Supra,  §  3,  note  12. 

''  Supra,  § ;). 

»  Articio  IV,  §  t ;  infra. 

§  21).    1  Articles  of  Confoderatlon, 


■'  Supra,  §  4. 


"  Infra. 

*  Infra. 

§  21.  '  I'rfiston'.s  Docmiicnts  Illus- 
tratlvo  of  Anicricnu  History,  p.  88, 
quoti'il  nupr,t,  §  4,  noti'  1. 

•■i  Artlok's  of  Confeaoration,  III. 


100 


THK    I'ltKA.MIJLE. 


[CHAI'.  II. 


United  States.""  Tlic  plirase  in  the  Intter  clause  has  been  the  ex- 
cuse for  the  exercise  of  all  douhtful  powers  hy  C'onfjfress,  and  will 
he  considered  more  appropriately  in  connection  with  the  power  of 
taxation.^  Neither  this  nor  any  other  part  of  the  preamble  is  a 
grant  of  iiower.^ 

g  25.  Slffiiiftcniiee  of   tlio  Pliraso,  "  to  secure  tlie  Blcssiiifj'.H 
of  Liberty." 

The  New  England  Confederation  of  1(543  assigned  as  an  object 
of  the  league,  "  for  i)reserveing  and  propagateing  the  truth  and 
liberties  of  the  Gospel." '  Tlie  experience  of  a  century  had 
biuglit  the  people  that  political  liberty  was  more  in  danger,  if 
not  of  more  importance;  and  the  Articles  of  Confederation  of 
the  United  States  included  in  the  enumeration  of  their  objects, 
"the  security  of  their  liberties."^  It  required  almost  another 
hundred  yeara  for  them  to  learn  to  extend  the  blessings  of  liberty 
to  the  people  of  every  race  within  their  borders. 

g  20.  Sl^iiflcance  of  the  Phrase,  "  Ordain  and  establish." 

The  words  "ordain  and  establish"  are  inconsistent  with  the 
theory  that  the  new  government  was  a  league  or  treat}-.  'I'hey 
are  words  usually  applied  to  legislation,  especially  legislation 
of  an  extraordinary  character.  Ordinances  l)y  the  connnon  law 
were  originally  regulations  made  by  the  King  without  the  consent 
of  Parliament.  In  ItUl,  when  the  Conunons  were  discussing  the 
manner  in  which  Parliament  could  legislate  without  the  consent 
of  Charles,  the  antiquary  D'Kwes,  referring  to  an  ancient  prece- 
dent which  di<l  not  support  his  position,  boldl}^  asserted  they  had 
the  right  to  pass  laws  in  the  form  of  ordinances  Avithout  the  con- 
sent of  the  Crown.i     The  suggestion  was  applauded,  and  almost 


»  constitution,  Article  I,  §  8. 

*  I^fra. 

'  Story  on  the  Constitution,  §  4G2. 
See  infra. 

§  25.  1  Quoted  supra,  §  4,  note  1. 

^  Artifles  of  Confcdorallon,  III. 

§  '2(1.  1  Tlio  ilist  onliniinco  which 
passed  the  tonimons,  was  in  1041,  au- 
thorizing commissioners  to  proceed  to 
Edinburgh  to  treat  with  the  Scottish 


rarlintncnt.  It  did  not  talse  effect  till 
it  pa.'sscd  tlio  Lords.  Tlie  name  and 
form  were  suggested  hy  tlio  antiqua- 
I'ian  D'Kwcs,  wlio  cited  a  precedent 
of  137:1  under  Edward  III,  which  did 
not  apply,  since  lliat,  like  all  other 
previous  onlinancea,  was  r  ade  by  tlie 
King  without  the  consent  of  Parlia- 
ment, (lardiner's  Fall  of  the  Mon- 
archy of  Charles  I,  vol.  1,  p.  238. 


"•] 


"ORDAIN    AXI>    ESTABLISH. 


101 


inviiriiibly  during  the  CJreat  Rebellion  until  the  uholitiou  of  the 
oili'ju  of  King,  Pai'liiunent  legishittitl  by  ordinanee.  Tiie  Con- 
tinental Congress  and  Congress  under  the  Confederation  usually 
jii'oceeded  by  ordinanees  or  resolutions.  The  fn-st  Constitutions 
of  I'cnnsyls'ania,  \\'nnont  and  Massachusetts  contain  the  jjlirase 
"ordain  and  establish."  Those  of  New  York  and  (Jeorgia, 
'•  ordain  anil  declare."  ^ 


-  Tlie  Constitution  of  Pennsylvania, 
fraiui'd  liy  a  popular  convonlion  which 
Kal  from  July  15th  to  ScpltMiibor  28th, 
177fi,  reeiti's  in  its  preiiniLilo :  — 

"Wo,  tliH  roprcsciitativos  of  the 
froomcn  of  I'oiuiHylvnnla,  iu  general 
ciinventiou  met,  for  the  express  pur- 
pose of  fraiiiinji  such  a  ({ovornnient, 
eonfessli'g  tlie  gooiln(*s  of  the  Great 
(ioveruor  of  the  universe  (wlio  alouo 
Icnows  to  what  (lej;ree  of  earthly  hap- 
jiine'S  mankind  nuiy  altiiln,  liy  per- 
feeting  tiuj  arts  of  Koveriinient)  in 
permitting  the  ]ieoi)li^  of  this  State,  liy 
eouimouconsiMit,  and  without  violence, 
deliherately  to  form  for  themselves 
sueh  just  rules  I's  they  shall  think 
best,  for  governing  their  future  so- 
ciety ;  and  lieing  fully  eonvin<'od  that 
it  is  our  indispensable  duty  to  estal)- 
lish  sueh  original  prini'iples  of  gov- 
ernment as  will  best  promote  the 
general  happiness  of  tlu'  people  of 
lids  State,  ami  their  posterity,  and 
jirovido  for  future  Improvements, 
without  partiality  for,  or  prejudice 
against  any  parliindar  class,  sect,  or 
ilonoMunation  of  men  whatovi'r,  <lo, 
by  virtue  of  the  authority  vested  in 
us  by  oureonstituents,  onlaiti,  derlarr, 
nnil  rHtnlilinh,  the  following  I)r  liinition 
of  riii/lilH  iiud  Friimc  of  lliirirnmeut,  \o 
bo  the  CoxsTrrrrtox  of  t!us  comnion- 
woalth,  and  to  renuiin  in  force  therein 
forever,  unaltered,  except  in  such 
articles  as  shall  liereafter  on  experi- 
ence lie  found  to  reipiire  imjirovement, 
and  which  iluiU  by  the  same  author- 
it}'  of  the  people,  fairly  delegated  as 
tills  fruuiu  of  goverumeul  directs,  bo 


amended  or  lmi)rovod  for  the  more  ef- 
fectual obtaining  and  securing  the 
great  end,  and  design  of  all  gov- 
ernment, hereinbefore  mentioned." 
Piiore's  Charters  and  Constitutions, 
Part  II,  pp.  l.'ilO,  1541. 

Tlio  Constitution  of  Vermont,  adopt- 
ed liy  a  popular  convention  which  sat 
betw.'en  July  2d  and  July  8th,  1777, 
and  suliseipiently  aHlrnied  and  de- 
clared to  !)(■  a  part  of  the  laws  of  the 
State,  by  the  legislature  in  177'.)  and 
17m2,  states  in  its  preamlde:  — 

"We  the  rcjiresentatives  of  tho 
Freemen  of  Vermont,  in  general  'in- 
vention met,  for  the  express  purpose 
of  forndng  such  a  government,  —  con- 
fessing tho  goodness  of  the  Great 
Governor  of  the  universe,  (whoalono 
knows  to  wliat  degree  of  earthly  hap- 
piness, mankind  may  attain,  by  jjer- 
fecting  the  arts  of  govi'inment  ,  iu 
permitting  the  jicopli'  of  this  Slate, 
liy  common  consent,  and  witliout 
violence,  deliberately  to  form  f(U- 
themselves,  sucli  just  rules  as  they 
shall  think  best  for  governing  their 
future  scK'iety;  and  being  fully  con- 
vinced that  it  is  our  indlspen.s:ible 
duty,  to  e.stabllsli  such  original  prin- 
ciples of  government,  as  will  best  pro- 
mote tho  g(>m>ral  happiness  of  tho 
people  of  this  State,  and  their  pos- 
terity, and  provide  for  f\iture  im- 
provements, williont  partiality  for,  or 
lirejudice  against  any  parlieulur  class, 
sect  or  deiu)minath)n  of  men,  what- 
ever, —  do.  by  virtue  of  authority 
vesle.l  iu  \is,  by  our  constituents, 
ori/d.'i.',  ih'clare  ami  cutablixh,  tho  fol- 


102 


TIIK   PItKAMULK. 


[chap.  It. 


'I'lio  i)lan  of  Piuckncy,  as  now  preserved,  eontaiiis  the  simie 
pi'(':iiul)le  as  tlie  report  of  tlie  Coininittee  of  I)et;iil :  — 

"  We,  the  people  of  the  States  of  New  Ilaiiipsliire,  Massachusetts, 
Rhode  Island,  Providence  Plantations,  Connecticut,  New  York,  New 


lowinndoc'lurntion  of  ritjlita,  nnd  frame 
of  Hovonimont  to  tio  the  Constii  htion 
of  t  his  C'oMMONWT^ALTH,  iiuil  to  romaiu 
ill  force  thorolii,  forever,  unaltered, 
exeept  in  siKrh  articles,  ns  sluill,  here- 
after, on  experieneo,  be  found  to  ro- 
qiiiie  improvement,  iind  wliieh  sliiill, 
hy  the  Kiiiiie  authority  of  V.w  people, 
fairly  dolevtatedns  tills  fninie  of  (,'overn- 
mcMl  directs,  lie  amended  or  improved, 
for  tlie  moio  effoetiial  obtaining  and 
Heciuing  tho  groat  end  and  dcsinn  of 
all  f?overnment,  iierelnbi>foro  mon- 
tion(>d."  Pooro'sCluirtersnnd  Consti- 
tutions, Part  II,  pp.  18.5.S,  1H59. 

Tlie  Constitution  of  llassachusttts, 
framed  by  a  popular  convention  which 
sat  from  September  1st,  1779,  to  March 
2d,  17K0,  and  adopted  by  a  vote  of 
,  more  than  two-thirds  of  the  people, 
has  the  foilowin;;  ]ireamble :  — 

"The(>nd  of  the  institution,  maln- 
tenauic,  and  administration  of  gov- 
ernment is  to  secure  the  e.xistence  of 
the  bo  ly-piilitic,  to  protect  it,  nnd  to 
furnisli  tlie  inilividuais  wlio  compose 
it  Willi  the  power  of  enjoying,  in 
safety  and  Iraucinillity,  their  natural 
rights  and  the  blessings  of  life;  and 
whenever  these  great  objects  are  not 
obtained,  the  peojilo  have  a  right  to 
alter  the  government,  and  to  take 
measures  necessary  for  their  safety, 
prosperity,  and  happiness. 

"The  body-politic  is  formed  liy  a 
voluntary  association  of  individuals ; 
it  is  a  social  compact  liv  which  the 
whole  people  covenants  with  e;ich 
citizen  and  each  citizen  with  the  wlioli! 
jieople  that  all  shall  bo  governed  by 
certain  laws  for  the  common  good. 
It  is  tlie  duty  of  the  people,  therefore. 
In  framing  a  constitution  of  govcrn- 


ninnt,  to  provide  for  an  eriuitablo 
iiiodo  of  mailing  laws,  as  well  as  for 
an  impartial  interpretati(m  and  a 
faithful  execution  of  them  ;  that  every 
man  may,  at  all  times,  find  his  security 
in  tlieni.  ' 

"We,  tlierefore,  the  peojilo  of  Mas- 
sachusetts, aciiiiowledging,  with  grate- 
ful hearts,  tlio  goodness  of  the  great 
Iiegislator  of  the  universe,  in  afford- 
ing us.  In  tli(>  course  of  Hisiirovidence, 
an  opportunity,  delilierately  and 
peaceably,  without  fraud,  violence,  or 
surprise,  of  entering  into  an  origi- 
nal, explicit,  nnd  solemn  oompact  with 
each  other,  nnd  of  forming  a  new  con- 
stitution of  civil  government  for  our- 
selves and  posterity;  and  devoutly 
Imploring  His  direction  in  so  Interest- 
ing a  design,  do  agree,  vpnn,  ordain, 
and  estnbliMh  the  following  declaration 
of  riglits  nnd  frame  of  government  as 
tlio  constltutiun  of  theeommonwenlth 
of  llassnchusetts."  Poore's  Charters 
and  Constitutions,  Part  I,  pp.  OBfi, 
!)57.     ■ 

The  Constitution  of  fi(>orgin,  framed 
and  unanimously  agreed  to  by  a  pop- 
ular convention,  February  ."ith,  1777, 
concludes  its  preamlile  :  — 

"  We,  therefore,  the  representatives 
of  tin,  people,  from  wliom  all  jiowor 
(U'iginales,  nnd  for  wiioso  benefit  all 
governiiient  is  Intendeil,  by  virtue  of 
the  power  delegated  to  us,  do  ordain 
and  declare,  and  il  in  herebi/  ordained 
and  declared,  tliat  the  following  rules 
and  regulations  be  adopted  for  the 
future  government  of  this  Stativ" 
Poore's  Charters  and  Constitutions, 
Part  I,  )).  37H. 

Tlie  Constitution  of  New  Yoris, 
framed  by  ii  popular  convention  which 


y^'-] 


"  THIS   CONSTITUTION." 


108 


.li'isoy,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina, 
Sdiitli  Carolina  and  Oeorj^ia,  do  ordain,  declare  and  establish  the 
following  Constitution  for  the  government  of  ourselves  and  our  pos- 
terity."* 

ill  Mainilton's  plan,  wliicli  he  furnished  to  Madison  at  ahout 
tlic  closi-  of  the  Federal  Coiiveiition,  tlie  jireainhle  reads  — 

"The  people  of  the  United  States  of  America,  do  ordain  and 
estiihlish  this  Constitution  for  the  government  of  themselves  and  their 
posterity."* 

The  form  was  Tuanifestly  adopted  for  the  jmrpose  of  reanirniing 
the  statement  that  the  Constitution  was  a  hiw  rather  than  a 
treaty.  It  was  suggested  by  the  form  used  in  previous  State 
Ciiiistitntions,  and  shows  an  intention  to  place  the  Federal  Coii- 
stilutiou  upon  the  same  footing. 

S37.   SIffniflcancc  of  the  AVorrt  "  Constituaon." 

But  above  all  the  preamble  concludes  witli  the  words,  "  this 
Constitution  of  the  United  States  of  America."  In  the  Articles 
of  Confederation,  that  instrument  was  styled  "a  lirm  league  of 
friendship."  ^  If  no  change  had  been  designed,  the  word  "  league" 
Avould  have  been  re])eate<l.  The  word  Constitution  liad  a  well- 
known  meaning  at  the  time,  having  been  used  in  the  Constitu- 
tions of  the  different  States  which  were  not  still  governed  under 
their  colonial  charters.  It  signified  a  fumhiniental  law,'*  unchange- 
able and  indissoluble  except  in  the  manner  therein  indicated, 
or  by  a  I'cvolutiou.  This  fact,  coupled  with  the  subse(pient  decla- 
ration that  the  Constitution  of  the  United  States  was  the  supreme 
l;iw  of  the  land,''  establish  that  construction  which  has  been  settled 
liy  tie  logic  of  subscipient  events. 

Attempts  have  been  made  to  weaken  the  force  of  the  use  of 


Piit  from  July  lOth.  1771".,  to  April  20th, 
1777,  icciti'H  ill  nearly  ovory  resolii- 
tion:  " 'J'liirt  ii)iiv<'ntioii,  tlioiofon>,  in 
tho  iiaiiie  ami  liy  the  authority  of  tho 
good  |it'ople  of  this  State,  (loth  oril  lin, 
<li't ('inline,  nnddeelnrethat."  Pooro's 
Cliaiters  aniJ  Constitutions,  Part  II, 
l>.  1332. 


"  JIailison  Papers,  Elliot 'h  Debates, 
2d  ed.,  vol.  V,  j).  .'■.H4. 

*  Madison  Papers,  Jlllioi'.s  Dobato.'), 
2(1.  ed.,  vol.  V,  p.  384. 

§  27.  '  Articles  of  Conredonition, 
III. 

•i  W('liat(>r,  §  Ifi,  iioto  14,  supra. 

«  Constitution,  Arllclo  VI. 


104 


THK   PKEASIIiLK. 


[chap.  ir. 


tlii.!  term  l)y  reference  to  tlie  liinp;nage  of  statesmen  and  public, 
(lociiniunts  wliR'li  sjieak  of  tlie  Articles  of  Confederation  as  a 
constitution,^  especially  the  resolutions  of  Congress  recommend- 
ing the  Federal  Convention,  in  order  to  "render  the  Federal  Con- 
stitution adequate  to  the  exigencies  of  government  and  the 
preservation  of  the  rnion."''  Hut  the  language  there  used  was 
colloquial  rather  than  technical,  and  in  the  same  sense  that 
Blaekstonc  and  others  cnqiloy  when  describing  the  stsitutes  and 
common  law  of  (ircat  liritain  in  relation  to  the  powei-s  and  com- 
position of  the  Crown  and  Parliament  as  the  liritish  Constitution. 
The  term  is  not  used  in  the  Articles  of  Confederation  themselves; 
and,  moreover,  many  claimed  that  they  could  not  be  legally 
dissolved." 

S  28.    TestiiiKuiy  of  Coiitcmpornrj-  Statesmen  on  the  Nature  of 
the  Constitution. 

When  Me  examine  (he  views  of  contemporary  statesmen,  the 
same  conclusion  is  strengthened.  Nowhere  in  tlu?  debates  in  the 
Federal  or  State  Conventions,  nor  in  the  panqjldets  on  either  side 
of  the  question  of  ratilication,  do  we  llnd  a  liint  of  the  riglit  of 
secession.  Its  o[)ponents  attacked  the  Constitution  as  a  destruc- 
tion of  the  States  and  the  creation  of  a  consolidated  natif)n.'     The 


*  Soo  thn  coniiiiissioiiH  of  Uio  (l(\li'- 
gntos  (i)  tlio  Fodcral  Convontiun, 
Elliot'H  Deliiili's,  2il  fd.,  vol.  i,  i)|). 
l'2lM;t;i;  lt('piil>lii-  of  l{i>i)\iUic8,  by 
Bonianl  .T.  Sa},"-,  Itli  cil.,  p.  19H. 

"  Qiiot'-il  SK/im,  §  '). 

"  Soo  tlio  lariHUiigo  of  Patterson, 
ijuotLHl  mijira,  S  2lt. 

§2H.  1  Si'O  os|i(>cinlly  tlio  arguments 
of  Paliick  Henry,  (icoi'ms  JIason,  and 
ollieis,  in  the  Virgiida  Coiivi'iitioii. 
(ieorge  Ma.'ioii  propli"sied  \vi(h  woii- 
ilerful  pn"s('i(nu'e  the  j^rievaiicrK  which 
suliseijiiently  arose.  Ho  foretold  tlio 
Sedition  Law:  "Now,  mipposo  op- 
])ressioiis  should  arise  iiniler  (Ids 
goveriiiiieiit,  and  any  wrlti'r  should 
dare  to  stiiid  I'orth  and  expoi-o  to 
the  ('oniiuiinily  at  lai'tie  the  aliuses 
of  tlio>e  iioweis;   lOuM  not  t'ongress, 


under  tlio  idea  of  providiuH  for  (lio 
general  welfare,  and  under  llieir  own 
eonstructlon,  .'i.iy  tliat  this  was  de- 
stroying I  lie  general  peace,  eneourag- 
ing  .sedition,  and  jioisouing  the  minds 
of  the  i)eoplo':'  .Vnd  coulil  they  not. 
In  order  (o  provide  igalnst  tliis,  lay  a 
dangerous  restriction  on  tlio  press?" 
Elliot's  Deliales,  2d  ed.,  vol.  iii,  p. 
4(2.  Ho  warned  tho  South  that 
shivery  would  he  endangered  :  — 

"There  is  a  ( l.iusi\  to  pioliibit  the 
Importation  of  slaves  after  twenty 
years,  but  tlieic  is  no  provision  for 
seeuringto  the  Soulhein  States  thoso 
they  now  jiossess.  It  is  far  from  be- 
ing  a  desirable  property;  init  it  will 
involve  us  in  great  dillleulties  and  In- 
felirily  to  bo  ever  deprived  of  lliom. 
There  ought  to  bo  a  clause  in  th» 


§28.] 


TESTIMONV   Ol'   CONTKMrOUAUlKS. 


lOi" 


l'((lo:;>lists  lulmittod  that  the  new  govcrnmejit  was  partly  national, 
Iml  claimed  that  the  coniiJOHition  of  the  Senate  and  the  eleetii>n 
(it'  the  i'vesident  made  it  also  partly  Federal. 

"Oil  cxaiiiiiriiif;!  the  first  reliition,  it  appears,  on  one  liaiid,  tliat  the 
Coiislitiition  is  to  lie  fouiiiii'd  on  tlio  assent  and  ratilieation  of  tlie  people 
(if  Aiiicriea,  fjiveii  by  deputies  eleeted  for  the  special  purpose;  but,  on 
the  otiier,  tliat  this  assent  and  ratilieation  is  to  be  j^iven  by  tlie  jieople, 
not  as  individuals  composing  one  entire  nation,  but  as  composing  the 
(lisiiiiet  and  independent  States  to  wiiicli  tliey  respectively  belong.  It 
is  ti)  lie  tiie  assent  and  ratification  of  tlie  several  States,  derived  from 
tlie  supreme  authority  in  each  State,  —  tiie  authority  of  the  pe()])le 
Iheniselves.  Tlie  act,  tlierefore,  establishing  the  Constitution,  will  not 
be  a  iKiliiiiiiil,  but  sifcdentl  act."" 

"  The  next  relation  is  to  the  sources  from  which  the  ordinary  powers 
i)f  govenitiient  are  to  be  derived.  The  House  of  Representatives  will 
ilerive  its  powers  from  the  people  of  America;  and  tlie  people  will  be 
icpieseiited  in  the  same  proiwrtion,  and  on  the  same  principle,  as  tl  'y 
are  in  the  legislature  of  a  particular  State.  So  far  the  government  is 
iiiitintiiil,  not  Jhleriil.  The  Senate,  on  the  other  hand,  will  derive  its 
powers  from  the  States,  as  ])olitieal  and  coc(pial  societies;  and  these 
will  lie  represented  on  the  principle  of  equality  in  the  Senate,  as  they 
now  are  in  the  existing  Congress.  So  far  the  government  i-i  Jhlerul, 
not  iittlliiiKil.  The  executive  power  will  be  derived  from  a  very  com- 
poMiid  source.  The  immediate  election  of  the  President  is  to  be  made 
liy  the  States  in  their  political  characters.  The  votes  allotted  to  them 
;iro  ill  a  compound  ratio,  which  considers  them  partly  as  distinct  and 
coeciual  societies,  partly  as  uneipial  members  of  the  same  society.  The 
eventual  election,  again,  is  to  be  made  by  that  branch  of  tlie  legislature 
which  ennsists  of  the  national  rej>resentalives ;  but  in  this  particiihir 
act  they  are  to  be  thrown  into  the  fovm  of  individual  delegations,  fioiii 
so  many  distinct  and  coecpial  bodies  politic.     From  this  aspect  of  the 


('oiif-titutioiil()Hoeureusthiiti)ropi;ity, 
v.liicli  we  liHvo  iicquireil  under  our 
former  Uiws,  iind  tlio  loss  oC  wliieh 
woulil  lirinfj;  ruin  on  a  great  miiiiy 
people."  Ibid.,  p.  270.  See  also 
MiiHoti's  remarks  to  the  sanio  cffoet, 
ililil.,  pp.  4.53,  45R.  Madison  argued 
lii.it  there  was  adequate  pmteellou 
\>y  the  provision  for  the  return  oT 
fiinitive  Hlavi's  and  the  grant  ot  no 
Jiower   lo   ubollsli   slavery.     Iliid.,   p. 


45:1.  Patrlek  Henry  replied,  ibid.,  pii. 
it,-i,  45(i. 

The  address  of  the  minority  of  lln" 
Pennsylvaniii  Oinvenlion  ineluded 
among  the  objeetious  eniiiiiei:it<'d 
that  there  is  "no  declaration  that  the 
St'ites  ri>servo  their  soviu'eignty,  free- 
dom and  independ(>nce,"  American 
lluseiim,  November,  17S7. 

-  MailirtoM  in  Tlie  Federalist,  No. 
xxxi.\.  Lodge's  ed.,  p.  '230. 


ion 


NATl'ltK   OF   TlIK   (•ONSTITUTION. 


[CIIAI", 


pjviTiiiiieiit,  it  opponrs  to  lie  of  n  mixed  character,  prcseiitiufj  at  least 
lis  mimy  ./''<''''■"'  '"*  mttiomd  features. 

"'I'lii'  ilifferi'iiee  lietwecn  a  federal  and  national  {jovernnicnt,  aw  it 
reliiles  to  the  ojii'nilioii  of  tin'  tjovvnnHi'nt,  is  Htippo»ed  to  consist  in  this, 
thnt  in  tlie  former  the  powers  operate  on  the  political  bodies  composing; 
the  confederaej',  in  their  political  capacities;  in  the  latter,  on  the  indi- 
vidual citlzeim  composing  the  nation,  in  their  individual  capacities.  On 
tryiiifj  the  t'oustitution  by  this  criterion,  it  falls  nnder  the  vdtioiiiil,  not 
the  federal  eliaraeter ;  though  perhaps  not  so  completely  as  has  been 
iiiidersfood.  In  several  cases,  and  particularly  in  the  trial  of  con- 
troversies to  which  States  may  be  parties,  they  must  be  viewed  and 
jjroeeeded  against  in  their  collective  and  political  capacities  only.  So 
far  the  natiomd  countenance  of  the  government  on  this  side  seems  to  be 
disfigured  by  u  few  federal  features.  ]5ut  this  blemish  is  perhajis  un- 
avoidable in  any  plan ;  and  the  operation  of  the  government  on  the 
jieople,  in  their  individual  c.ipacities,  in  its  ordinary  and  most  essential 
proceedings,  may,  on  the  whole,  designate  it,  in  this  relation,  a  natitmtd 
government."' 

"If  we  try  the  Constitution  by  its  last  relation  to  the  authority  by 
which  amendments  are  to  be  made,  we  find  it  neither  wholly  7ia<(V((/((/ 
nor  w  holly  ./'('f'cnf/.  Were  it  wholly  national,  the  supreme  and  ultimate 
autliority  would  reside  in  the  viajon'ti/  of  the  people  of  the  Union  ;  and 
tills  autliority  would  be  competent  at  all  times,  like  that  of  a  majority 
of  every  national  society,  to  alter  or  abolish  its  established  government. 
AVere  it  wholly  federal,  on  the  other  hand,  tho  concurrence  of  each 
State  in  the  Union  would  be  essential  to  every  alteration  that  would  be 
binding  on  all.  The  mode  provided  by  the  plan  of  the  convention  is 
not  founded  on  either  of  these  principles.  In  re(iuiring  more  than  a 
majority,  and  particularly  in  computing  the  proportion  by  Stittex,  not  by 
cttizeiiH,  it  departs  from  the  vationul  and  advances  towards  the  federal 
eliaraeter;  in  rendering  the  concurrence  of  less  than  the  whole  number 
of  States  sutlieieut,  it  loses  again  the  federal  and  partakes  of  the 
natianul  character. 

"The  proposed  Constitution,  therefore,  is,  in  strictness,  neither  a 
national  nor  a.  federal  Constitution,  but  a  composition  of  both.  In  its 
foundation  it  is  federal,  not  national ;  in  the  sources  from  which  tiie 
ordinary  powers  of  the  government  are  drawn,  it  is  partly  federal  .ind 
partly  national ;  in  the  operation  of  these  powers,  it  is  national,  not 
federal;   in  the  extent  of  them,  again,  it  is  federal,  not  national;  and. 


»  Madlsou  in  Tim  FiMloralist,  No.  xxxix,  pp.  237,  238. 


TESTIMONY   OK   CONTKMI'OIIAUIKS. 


107 


linally,  in  the  authoritative   mode  of  introducinj?  nmendmeiits,   it   is 
iioithti-  wlioliy  federal  nor  wholly  national."* 

Wilson  siiid  in  the  PennHylviinia  Convention : 

••  AVe  now  see  the  greot  end  which  they  proposed  to  necomplish.  It 
was  to  frame  for  the  consideration  of  their  constituents  one  Federal  and 
National  Constitution  —  a  constitution  that  would  procure  the  advau- 
tajri's  of  flood,  and  prevent  the  inconveniences  of  bad  {jovernmcnt  —  a 
ciiiiJititution  whose  beneticeiico  and  enerjiy  would  i)ervade  the  whole 
1  iiiDii  and  hind  and  embrace  the  interests  of  every  psirt  —  a  constitution 
that  wotdd  insure  ])eace,  freedom,  and  happiness  to  the  States  and 
|H(i|)lc  of  America.  "' 

••If  when  he  says  it  is  a  consolidation,  he  means  so  far  as  relates  to 
the  iicncral  objects  of  the  Union,  — so  far  it  was  intended  to  be  a  con- 
^(■lidalion,  and  on  such  a  consolidation  perhaps  our  very  existence  as  a 
naliuii  depends."  ' 

••  The  very  manner  of  introducing  this  Constitution,  by  the  recogni- 
tioii  of  the  authority  of  the  people,  is  said  to  change  the  p'^inciple  of 
tlic  present  Confederation,  and  to  introduce  a  consolidatimj  and  absorb- 
in;,'  i;()vernment. 

••  In  this  confederoted  republic,  the  sovereignty  of  the  states,  it  is 
said,  is  not  preserved.  We  are  told  that  there  cannot  be  two  sovereign 
powers,  and  that  a  subordinate  sovereignty  is  no  sovereignty. 

"It  will  be  worth  while,  Mr.  President,  to  consider  this  objection  at 
larjic  When  I  had  the  honor  of  speaking  formerly  on  this  subject,  I 
stated,  in  as  concise  a  manner  as  possible,  the  leading  ideas  that 
occurred  to  me,  to  ascertain  whether  the  supreme  and  sovereign  power 
resides.  It  has  not  been,  nor,  1  presume,  will  it  be  denied,  that  some- 
wJH'ii'  there  is,  and  of  necessity  must  be,  a  supreme,  absolute,  and  un- 
coiitrolhible  authority.  This,  I  believe,  may  justly  be  termed  the 
.«,/■( (•i/(/)i  power;  for,  from  that  gentleman's  (Mr.  Findley)  account  of 
till'  matter,  it  cannot  be  sovereign  unless  it  is  supremo ;  for,  says 
111',  a  subordinate  sovereignty  is  no  sovereignty  at  all.  I  had  the  honor 
of  olisorving,  that,  if  the  question  was  asked,  where  the  supreme  power 
resided,  dilTerent  answers  would  be  given  by  different  writers.  1  men- 
tioned that  Hlackstone  would  tell  you  that,  in  Hritaiu,  it  is  lodged  in 
the  Iiiitish  l^rlianient;  and  I  believe  there  is  no  writer  on  this  subject, 
on  the  other  side  of  the  Atlantic,  but  supposed  it  to  be  vested  in  that 


*  Madison  in  The  Fedornllst,  No. 
xxxix,  Lodge's  ed.,  p.  239. 


5  Elliot's   Debates,  2d  ed.,  vol.  ii, 
p.  431. 

«  Ibid.,  p.  401. 


108 


MATURE   OK   THE   CONHTITUTHlN. 


[chap.  II. 


lioily.  I  stated,  further,  that,  if  the  quentioii  was  asked  of  boiiu- 
lioliticiuii,  who  Imd  not  considered  the  subject  with  sulllcient  aceuriiey, 
wiiero  the  supreme  power  resided  in  our  governments,  he  would  answer, 
that  it  wnH  vested  in  tiie  State  constitutions.  This  opinion  approaches 
near  tiie  truth,  liut  does  not  reacli  it;  for  tlie  truth  is,  that  the  supreme, 
nitsolutc,  and  uncontrollable  authority  remuina  with  the  people.  I 
mentioned,  also,  that  the  practical  recofjnition  of  this  truth  was  reserved 
for  the  honor  of  this  country.  I  recollect  no  constitution  founded  on 
this  principle  ;  but  we  have  witnessed  the  improvement,  and  enjoy  the 
happiness  of  seeio"^  it  carried  into  practice.  The  f!;reat  and  penetrating 
mind  of  I^oeke  seenis  to  be  the  only  one  that  pointed  towards  even  the 
theory  of  this  {jreat  truth. 

"  When  I  made  tlie  observation  that  some  politicians  woiiUl  say  tin- 
supreme  power  y<i\s  lodfied  in  our  State  constitutions,  I  did  not  suspecl 
thiit  the  hononililo  fientleinan  from  Westinorclaiid  (Mr.  Findley)  was 
included  in  that  description  ;  but  I  lind  myself  disap|)ointed ;  for  1 
ima,<;incd  his  opposition  would  arise  from  another  consideration.  His 
position  is,  that  the  supreme  power  resides  in  the  States,  as  f^overn- 
ments  j  and  mine  is,  that  it  rrxiiles  in  the  people,  as  the  fountain  nl' 
government ;  that  the  peoi)le  have  not  —  that  the  people  meant  not  — 
and  that  the  people  ought  not  —  to  i)art  with  it  to  any  p;overnmeni 
whatsoever.  In  their  hands  it  remains  secure.  They  can  delegate  il 
in  such  proportions,  to  such  l)(>dies,  on  sueli  terms,  and  under  suej 
limitations,  as  they  think  proper.  1  agree  with  the  members  in  opi m- 
sition,  that  tlicre  cannot  bo  two  sovereign  powers  on  the  same  subject. 

"  I  consider  tiie  peojile  of  the  rnite<l  States  as  forming  one  gnat 
community ;  and  I  consider  the  peojjle  of  the  dilTereut  States  as  foiin- 
iiig  communities,  again,  on  a  lesser  scale.  From  this  great  division  of 
the  i>eople  into  distinct  communities,  it  will  be  found  necessary  that 
different  proportioi  s  of  legislative  |)Owers  should  be  given  to  the  gov- 
ernments, according  to  the  nature,  number  and  magnitude  of  their 
objects."  ' 


g  29.  (Tiidlciiil  DcoisionH  as  to  the  Xntiire  of  the 
Constitution. 

Tlie  con- tnu^tioii  put  upon  the  Coiistltntion  by  the  Federal 
.Ttidiciary  lias  lieon  uniform  in  favor  of  this  position^  Six  yenre 
lifter  the  adoption  of  the  Constitution,  a  majority  of  the  Supreme 

'  Elliot's  Dolmti's  on  the   Fodornl      the    (luolatlon   from  Madison,  Hi(;)ni, 
Constitution,  vol.  ii,  pp.  l.-.u,  4.''>(!.     Soc      §  11. 
also  Wilson's  Vt'orks,  vol.  i,  p.  ;M7  nnil 


JUDHUAI,    l>K(;iHIONH. 


lO'.t 


Coiirl  lirlil  tliiit  tlicy  Imd  juriHilU'tioii  of  ii  Huit  af»iiiii,st  ii  Stulc  liy 
ii  ritizcii  of  iiiiotluT  Stiitt!.'  Tlio  (lissiuitiiig  judj^n  coiK'tMlciI  tliivt 
"llir  I'liitcil  States  iiro  Hovcrcij^ii  uh  to  all  tlit?  jiowcrs  of  thi; 
irovcriiiiii'iit  ai'tualiy  HUiTniidcriMl ; "  and  as  ri'i^anls  "the  sfiecial 
(pjijei'ts  of  iiutliorily  of  tlio  ffi-neral  (iovernineiit,  wherein  the 
s(|i;ii'iitc  sovei'eif^iities  of  tli(!  States  are  blended  in  one  eoinnion 
iiiiiNS  of  siipreniaey.""-  Of  tiie  majority,  two  lield  that  the  St.ites 
li;id  ri'lincinisheil  so  much  of  their  sovereiLfnty  as  exi'nijited  them 
t'ldin  suit."  Chief  Justice  Jay  said  that  the  Fedeiiil  Constitution 
liiid  the  same  effect  upon  the  people  of  the  I'liited  Stati'S  as  a 
Stale  Constitution  upon  the  pi-ople  of  a  State.*  Wilson  iiehl  that 
the  (jiiestion  for  decision  w.is  this:  "Do  the  peojile  of  the  I'nited 
Slates  form  a  nation?"''  which  lie  residved  in  the  alllrmative :  — 

"  Wlioiiver  considers,  iu  a  combined  and  eoinprcheiisivc  view,  tlie 
general  texture  of  the  Constitntion,  will  be  satislled  tiiat  the  people  of  the 
I  uiti'd  States  intended  to  form  tiieinselvcs  into  a  tuition  for  wttionnl 
jiiiriiiiKcu.  They  instituted  for  such  purposes  a  national  government, 
i'oinplcte  in  all  its  jjurts,  with  j)0wcr8  legislative,  executive,  and  judi- 
eiiMT,  and  in  uU  those  powers  extending  over  the  whole  nation."' 

Later  came  the  o))inion  of  Chief  Justice  Marshall,  who  said:  — 

"  To  the  formation  of  a  league,  such  as  was  the  Confederation,  the 
State  sovereignties  were  certainly  competent.  Hut  when,  '  in  order  to 
form  a  more  perfect  union,'  it  was  deemed  necessary  to  eliango  this 
alliance  into  an  effective  government,  possessing  great  and  sovereign 
powers,  and  acting  directly  on  the  people,  the  neecsiity  of  referring  it 
to  tlie  people,  and  of  deriving  its  powers  directly  from  them,  was  felt 
and  !iek  MOW  {edged. "  ' 

"Tliat  tlie  liiited  States  form,  for  many  and  for  most  imi)ortant 
purposes,  a  single  nation,  has  not  yet  been  denied.      In  war,  we  are 


S  'i'.l '  C'liiHliiilm  r.  Georgia,  2  Dallas, 
•tl'.l,  A.U.  ll'.rx 

-JiJiiticn  Irodoll,  ibid.,  435.  See 
aUo  Ills  (>;iinion  In  rentiallt)w  r. 
Doano's  Administrators,  3  Dallas,  51, 
91. 

'  .lustico  Blair,  Ibid.,  p.  i'>2.  Justice 
CiishliiK,  il)icl.,  p.  4CH. 

*"  Every  State  Constitution  1«  a 
coinpaet  mndo  by  and  between  the 
vitizeos  of  a  State  to  govern  them- 


selves In  a  rertaln  manner,  and  the 
Constitution  of  tins  United  States  Is 
likewise  a  eouipuel  nwulo  l>y  tlie  peojile 
of  the  ITnKe  I  Hlntos  to  govern  tlieiii- 
Bolvof!  as  to  general  <>l)jeet»  iu  a  cer- 
tain manner."    Ibid.,  p.  471. 

6  Il)id.,  p.  45;). 

«  Ibid.,  !>.  4G,''i. 

'  MeCulloeli  v.  Maryland,  4  Whea- 
ton,  316,  404,  A.D.  1819. 


110 


NATrilK    or    CONSTlTrTlON. 


[CIIAI".  !I. 


one  pcoplo.  In  milking  i)Piice,  we  arc  one  people.  In  nil  coninierc'wl 
ivgnlfitions,  we  are  one  and  tlic  same  people.  In  many  otlier  respeets, 
tlie  American  people  are  one;  anil  the  government  which  is  aloiip 
capable  of  controlling  ami  managing  their  interests  iu  all  these  respects, 
is  the  government  of  the  Union.  It  is  their  government,  ami  in  that 
character  they  have  no  other."  * 

"  Heference  has  been  made  to  the  political  situation  of  these  States 
anterior  to  its  formation.  It  has  been  said  that  they  were  sovereign, 
were  completely  independent,  and  were  connected  with  each  other  only 
liy  a  league.  This  is  true.  Hut  when  these  allied  sovereigns  convertnl 
tiieir  league  into  a  government,  when  they  converted  their  Congress  of 
ambassadors  deputed  to  deliberate  on  their  common  concerns,  and  to 
recommend  measures  of  general  utility,  into  a  legislature,  empowered 
to  enact  laws  on  the  most  interesting  subjects,  the  whole  character  in 
which  the  States  appear  underwent  a  change,  the  extent  of  which  must 
be  determined  by  a  fair  consideration  of  the  instrument  by  which  that 
change  was  effected."' 

Even  so  stroiiLf  an  iidvocato  of  Suites'  rights  as  Chief  Justice 
'I'aney  said,  in  tin;  Dreil  Scott  case:  — 

"  The  new  government  was  not  u  mere  change  iu  a  dynasty,  or  in  a 
form  of  government,  leaving  the  nation  or  sovereignty  the  same,  and 
clothed  with  all  the  rights,  and  bound  by  all  the  obligations  of  the  pre- 
ceding one.  Hut  when  the  jjreseiit  I'nited  States  came  into  existence 
under  the  new  government,  it  was  a  new  political  body,  a  new  nation, 
then  for  the  first  time  taking  its  place  in  the  family  of  nations." '" 

Finally,  after  the  conclusion  of  tiie  Civil  War,  the  Su{;reme 
Court  said,  speaking  through  Chief-Justice  Chase:  — 

"The  Constitution,  in  all  its  provisions,  looks  to  an  indestructible 
I'nion,  composed  of  indestructible  States."" 

^  no.  Justification  for  Itcliet'  in  Legality  of  Secession. 

Vet  cogent  as  seem  tliese  arguments  ami  jjrccedents  to  incndicrs 
of  a  generation  cihicated  un(h'r  tlic  inthienec  of  tlie  tU'cisions  of 


"  a)honr.  VirKiniii.Ci  Wlionton,2r,4,  >i  Texas  r.  Wliilc,  7  W.illuio,  '<  ,,, 

■li;i,  414,  A.D.  IS'il.  72."),  iiiiole(l^(»;)ra,  S '2(1 ;  Wliiti-r.  Ciiii- 

"  Gililiotm  V.  ()K<Ii'n,  11  Wheaton,  1,  ikhi,  (i  Wall.  41:!,  4.'')U ;  Wlilto  i'.   Ilarl, 

187,  A.D.  l.S'24.  i;)  Wall.  Mi),  fi.'ill;  \Villiai;is  r.  UnifTv, 

1 '  Dred  Scull  v.  Sandford,  1!)  How-  ilCi  IT.  S.  17;t ;  ICi'iUi  v.  Cl.arK,  117  V.  S. 

urd.  3J3,  441.  4.J4. 


^  :10.] 


AITIIOIMTIKS    Kdlt    SKCKSSION. 


Ill 


ih  ■  SiiproiiK!  Court,  wliicli  have,  with  hut  short  periods  of  reaction, 
sti'iidilv  exteiuled  the  povvew  of  the  Federal  governnieut,  tlicrc  is 
1:0  fdundatiou  for  the  opprohriuin  lieapi^d  upou  tlie  ("onfederiitis 
liv  till'  supporters  oi  tiie  IJuiou  (Uirinj^  tlie  Civil  War  and  tlio 
siilisiMiucnt  period  of  Reconstruetion.  Notliing  is  more  unjust 
ihaii  to  ciiari.n'  witli  perjury  nieii  wlio,  like  Davis,  Lee  and  Stephens, 
lifter  havinj^  sworn  to  supi)ort  the  Constitution,  some  of  them 
after  opposition  to  secession,  joined  their  fellow  citizens  in  their 
own  States  in  waging  war  upon  tlie  nationii  govci-nmcnt.  They 
JKiuestly  hclieveil  that  the  Constitution  justiiicd  such  action. 
They  were  supjjorted  hy  doctrines  laid   (h)wu  hy  puhlicists^  as 


§  .TO.  '  Tlie  edition  of  Black.stone,  by 
St.  George  TiickiT,  published  in  1803, 
wiis  usually  recognized  iu  an  authority 
tlinnigliout  tlio  South  previous  to  the 
Ci'il  Wur.  The  p  ibll.slier.s  piiid  the 
editor  81,000  for  hia  worl;,  a  largo  sum 
even  for  tlie.se  tinie.s,  and  wliieli  .sliow.s 
the  esteem  with  which  lie  was  regarded 
liy  hi.s  contemporarle.s.  Tlie  editor  wa.s 
at  one  time  Judge  of  the  Virginia  Court 
()[  Appeals,  ami  later  Judge  of  the  l)is- 
li'icl,  Court  of  the  United  State.s  for  tho 
Ivistern  District  of  tliat  St.-ite.  He  was 
ilio  stepfiillier  of  Joliu  Handolph  of 
Uoaiioke ;  ar.d  lii.s  own  descenilants 
li.ave  served  tl.o  country  with  di.stino- 
tiiiii. 

"The  Federal  (loveninient,  then,  ap- 
pears to  be  the  (jrgan  through  which 
the  I'liileil  Ueiiiibliis  communicate  with 
foi'-ign  nations,  and  with  each  other. 
Theh' sulimission  to  its  operation  is  vol- 
iintai'v  ;  Its  councils,  iis  engagements,  its 
aiuliiirity  aretlicirs.niodided  and  united. 
Its.  Soveri  i.'iity  is  an  emanation  from 
theirs,  not  a  llamn,  in  which  tliey  havi^ 
been  consumed,  nor  a  vortex,  in  ■wliicli 
tlicy  are  swallowed  up.  Kaeli  is  still  a 
perfect  State,  still  Sovereign,  still  Indi-- 
peiulciit,  iinil  still  ciipal)!e,sliouhl  the  oc- 
lasiun  reipilre,  to  ri'suine  llie  excu.iseot 
its  functions, as  such,  in  the  mo.st  unlim- 
ited extent."  "  Tint,  until  the  time  shall 
arrive,  when  the  occasion  requires  a  re- 
sumplion  of  the  rights  of  Sovereignty  by 


the  several  States  (and  far  be  that  period 
removed,  when  it  shall  h.appen,)  the  ex- 
ercise of  the  rights  of  Sovereignty  by  l\w 
States,  individually.  Is  wholly  suspended 
or  discontinued  in  tho  cases  before  men- 
tioned :  nor  can  that  suspension  ever  be 
removed,  so  long  as  the  present  Consti- 
tution remains  unchanged,  but  by  tho 
dissolution  of  tho  bonds  of  the  uni<m ; 
an  event  which  no  good  citizen  can  wish, 
and  which  no  good  or  wise  adtninistra- 
tion  will  ever  hazard."  Tucker's  Black- 
stone,  vol.  i.  Appendix,  pp.  170,  171, 17C, 
187. 

The  first  treatise  on  tin?  Constitution 
of  tho  I'nited  States  was  by  William 
Uawle,  one  of  the  leaders  of  tlio  rhila- 
delphia  bar,  at  the  time  wlieii  the  phrase, 
"sharper  than  a  riiil.idelphia  lawyer," 
first  eiiino  into  use.  Ho  was  appointed 
Cnited  Slates  Attorney  for  that  district 
by  General  Wasliington. 

"  Having  thus  endeavored  toiielineate 
the  general  features  of  this  peculiar  and 
invaluable  form  of  (iovernmint,  we  shall 
coneludo  with  adverting  to  the  principles 
of  its  cohesion,  and  to  the  piovisioiis  it 
contains  for  its  own  duration  and  exten- 
sion. The  subject  cannot,  perliap.s,  be 
better  introduced  than  by  presenting,  in 
its  own  words,  an  eniplialieal  clauso  in 
llie  (^onslilution.  'Tlie  United  States 
shall  guarantee,  to  every  State  in  the 
Union,  a  Itepnblican  form  of  (iovern- 
ment ;  uliall  protect  each  of  them  against 


112 


NATURE   OF   OOXSTITmOX. 


[f'HAl'.  II. 


well  as  statesmen  ^  of  authority  in  the  North  as  well  as  the  South. 
Diu'ing  the  whole  of    the   nineteenth  century  down  to  the  sur- 


-  The  opinions  of  a  number  of  .state.s- 
nien  on  the  .subject  are  quoted  in 
§  31,  infra.  Soutlicrn  writers  have 
also  appealed  to  .Tolin  Quincy  Adams  as 
supporting  tlio  legality  of  the  right  of 
.secession.  The  passage  cited  evidently 
recognizes  not  tins  legal  right,  Init  the 
moral  right  of  secession,  in  case  of  a 
gross  violation  of  tho  rights  of  the  se- 
ceding section,  which  must  be  conceded 
by  all  who  adopt  tho  principles  of  the 
Declaration  of  Independence.  Seo 
Adams'  tlubiloe  of  tho  Constitution. 
Tho  writer  has  been  able  to  find  but 
one  ease  decided  before  tlu)  war  in 
which  the  legality  of  secession  was  dis- 
cussed. That  was  State  ex.  rel.  SIc- 
Cready  b.  Hunt,  9.  Hill,  S.  C.  Law,  1, 
decided  in  18."i,  which  is  sometimes 
published  separately  in  a  volume  entitled 
The  r.ook  of  Allegiance.  There,  the  Su- 
premo Courtof  South  C'an.jina  held  void, 
by  a  majority  of  two  to  one,  the 
statute  of  that  State  pa.ssed  in  December 
18oH,  in  i)ursuance  of  the  ordinance 
nuHifying  the  Forc"  liill,  which  pre- 
scrilied  to  tlie  ollicers  of  the  militia  .an 
oatli  of  allegiance  to  the  Slate.  .ludgo 
O'Ncall  and   Judge  Johnson   \\M    (pp. 


209,  215,  22.1,  22(1,  248),  that  allegiance 
was  due  to  both  tho  United  Stutes  nnd 
the  State,  that  the  convention  h.ad  no 
power  to  transfer  allegiance,  and  that 
the  statute  prescriliing  the  new  oath  was 
invalid,  lierause  not  recognizing  the 
United  States,  as  iireseribed  by  the 
Federal  Constitution,  Article  VI.,  and  as 
differing  from  tho  oath  prescribed  by 
tho  Stale  Constitution.  Judge  Harper 
(at  p.  218)  dis.sented  in  an  opinion,  hold- 
ing the  oath  constitutional,  upon  the 
ground  that  the  United  States  were  a 
confederacy  only ;  and  that  allegiance 
was  due  to  the  State  alone.  His  opinion 
contains  a  strong  argument  in  favor  of 
the  right  of  secession.  Nullification  is 
discussed  infra,  §  3.'!. 

It  is  claimed  by  the  author  of  The 
Uepublic  of  Republics,  liernard  J.  Sage 
(4th  ed.,  at  p.  ;!:3),  that  Uawie  and 
Tucker,  who,  as  h.as  been  shown  above, 
support  the  legality  of  secession,  "  were 
text-books  at  West  Point  when  Davis 
and  Lee  were  cadets  there."  The  pres- 
ent commanding  officer  at  West  Point 
has,  however,  informed  the  writer  that 
this  is  luitrue. 


invasion ;  and,  on  application  of  the 
Legli-lature,  or  of  tho  Kxeculive,  when 
liie  Legislature  cannot  be  convened, 
against  domestic  violence  '  The  Uiuon 
:'a  an  association  of  the  people  of 
llepublics ;  its  preservation  is  calcu- 
l.atcd  to  depend  on  the  preservation 
of  those  llepublics.  'he  principle  of 
represent.ation,  although,  certainly,  the 
wisest  and  best,  is  not  essential  to  the 
being  of  a  Uepublic  ;  but,  to  continue  a 
member  of  the  Union,  it  must  bo  pre- 
served; and,  therefore,  the  guarantee 
must  be  so  construed.  It  depends  on 
the  State  itself,  to  retain  or  abolish  the 
principle  of  representation;  liecau.se  it 
depends  on  itself,  whether  it  will  con- 
tinue a  member  of  the  Union.    To  deny 


tills  right,  would  be  inconsistent  with 
the  prinoiiiles  on  which  all  our  political 
systems  are  founded  ;  which  is,  that  the 
people  have.  In  all  cases,  a  right  to 
determine  how  they  will  be  governed. 
This  right  nuist  be  considered  as  an 
ingredient  in  llie  original  composition  of 
the  General  Governnuuit,  which,  though 
not  expressed,  wa-t  nuitually  understood  ; 
nnd  the  doctrine,  heretofore  presented 
to  tho  render,  In  regard  to  tho  indefeasi- 
ble natun!  of  personal  allegiance,  is  so 
far  (|ualilled,  in  respect  to  allegltti>;;e  to 
the  United  States.  It  was  observed  that 
it  was  competent  for  a  State  to  make  a 
Compact  with  its  citizens,  that  the  recip- 
rocal obligations  of  protection  and  alle- 
giance luijjht  cease  on  certain  events; 


y  :!ii 


•] 


AUTHOUITIKS    KOIJ    SKCKXSION. 


n:{ 


ii<lcr  of    Loc,    till!   I'ouiitiy  wa.s    divided  in  ojiinion    upon    the 


i'.iul  it  was  furtliur  observed  that  allc- 
tjiance  woiilil  necessarily  coase  on  tlie 
<lissolution  of  till'  society  to  which  it  was 
iluo.  Tlie  States  may  tlieii  wliolly  with- 
draw from  tlic  Union;  but  wliilo  tlipy 
(viniinue  tliey  must  retain  the  character 
of  ft  presentative  repuWics."  llawle  on 
ilie  Constitution,   pp.   288,  290,   A.    1). 

"The  secession  of  a  State  from  tlie 
I'liion  depends  on  the  will  of  the  people 
■  if  (inch  Slate.  The  people,  alone,  as  we 
liavc  already  seen,  hold  the  power  to 
jilttT  their  Constitution.  The  Constitu- 
tion of  the  Vnited  States  is,  to  a  certain 
( xlent,  incorporated  into  tlio  Constitu- 
liiins  of  the  several  States,  by  the  act  of 
llie  iieojile.  The  Stiite  I.«gislatures  have 
only  to  perform  certain  organical  opera- 
tions in  respect  to  it.  To  withdraw  from 
the  Union,  comes  not  within  the  gen- 
eral scope  of  their  delegated  authority. 
There  must  be  an  express  provision  to 
ilial  effect  inserted  In  the  State  Consti- 
tulinns.  This  is  not,  at  present,  the  case 
with  any  of  them,  and  it  would,  perhaps, 
bo  impolitic  to  conlido  it  to  them.  A 
uiatier,  so  momentous,  ought  not  to  be 
intrusted  to  those  who  would  have  it  in 
their  power  to  exercise  it  lightly  and 
preciiiitately,  upon  sudden  dissatisfac- 
tion or  causeless  jealousy,  perhaps 
agiiiiist  the  interests  and  the  wLslies  of 
a  majority  of  their  constituents.  But 
in  .liiy  manner  by  which  a  Secession  is 
til  t.ilic  place,  nothing  is  more  certain 
than  th.at  the  act  should  be  deliberate, 
clear,  and  unequivocal.  The  pcrspi- 
euily  .and  solemnity  of  the  original  obli- 
gation require  correspondent  qualities 
in  its  di.sHolution.  The  powers  of  the 
•  General  Ciovemnient  cannot  be  defeated 
or  impaired  by  an  ambiguous  or  implied 
Secession  on  the  part  of  the  State, 
although  a  Secession  may,  perhaps,  be 
coiiililional.  The  people  of  the  State 
may  have  some  reasons  to  complain  in 
resjiei't  to  acts  of  the  General  Govern- 
nu'iit ;  they  may,  in  such  cases,  invest 


some  of  their  own  officers  with  the  power 
of  negotiation,  and  may  declare  an  abso- 
lute Secession  in  case  of  their  failure. 
Still,  however,  the  Secession  must  in 
such  case  be  distinctly  and  peremptorily 
declared  to  take  place  on  that  event,  and 
in  such  case  —  as  in  the  case  of  an 
unconditional  Secession  —  the  previous 
ligament  with  the  Union  would  bi!  legiti- 
mately and  fairly  destroyed.  Hut,  in 
cither  case,  the  people  is  the  only  mov- 
ing power."     Ibid,  2nf),  20fi. 

"  111  no  part  of  the  Constitution  is  a 
specific  number  of  States  required  for 
a  legislative  act.  Under  the  Articles  of 
Confederation,  the  concurrence  of  nine 
States  was  requisite  for  many  purposes. 
If  five  States  had  withdrawn  from  that 
Union,  it  would  have  been  dissolved. 
In  the  present  Constitution  there  is  no 
specification  of  numbers  after  the  first 
formation.  It  was  foreseen  that  there 
would  be  a  natural  tendi'ncy  to  increase 
the  number  of  States  with  the  increase 
of  population  then  anticipated,  and  now 
so  fully  verified.  It  was  also  known, 
though  It  was  not  avowed,  that  a  State 
might  withdraw  itself.  The  number 
would  therefore  be  variable."  Ibid. 
207. 

"To  withdraw  from  the  Union  is  a 
solemn,  serious  act.  Whenever  it  may 
appear  expedient  to  the  people  of  a 
State,  it  must  be  manifested  in  a  direct 
and  uneiiuivocal  manner.  If  it  is  ever 
done  iiidireclly,  the  people  must  refuse 
to  elect  Representatives,  as  well  as  to 
suffer  their  Legislature  to  reappoint 
Senators.  The  Senator  whose  time  had 
not  yet  expired,  must  be  forbhlden  to 
continue  in  the  exercise  of  his  functions. 
But  without  plain,  decisive  measures  of 
this  nature,  proceeding  from  the  only 
legitimate  source,  the  people,  the  United 
Stales  cannot  consider  their  Legislative 
powers  over  such  States  suspended,  nor 
their  Kxeoutive  or  Judicial  powers  any 
way  impaired,  and  thoy  would  not  be 
obliged  to  desist  from  the  collection  of 


114 


NATUKE   OF   CONSTITUTION. 


[chap.  ir. 


subject.-^  The  Civil  War,  altlioiigii  iicld  in  law  to  be  a  rebel- 
lion, was  treated  by  the  Federal  army.  l)y  the  Federal  eourts, 
and  by  foreign  nations  as  in  fact  a  geographical  war,  giving  to 
the  combatants  on  both  sides  and  the  inhabitants  of  each  section 
of  the  conntry  the  rights  and  liabilities  of  belligerents.''  Meni- 
bei's  of  the  Confederate  armj-  were  not  pnnished  as  rebels.  None 
of  them  were  tried  for  treason.''     A  Northern  jury  refused  to  con- 


revenue,  williin  such  State.  As  to  the 
rcniaining  Sliitos,  ainoiif;  theiuselves, 
tliere  is  no  opi'iiing  for  a  doubt.  Seces- 
sions may  iTcluce  the  number  to  tlio 
siualles^t  integer  admittini;  combination. 
They  would  remain  united  under  the 
samn  principles  and  regulations,  among 
themselves,  that  now  apply  to  tho  whole. 
For  a  Stato  cannot  be  compelled  by  other 
States  to  withdraw  from  the  Union,  and, 
therefore,  if  two  or  more  determine  to 
remain  united,  alt'iougli  all  tho  others 
desert  them,  notliing  can  be  discovered 
in  the  Constitution  to  prevent  it.  The 
eonwquences  of  an  ah.solute  Secession 
cannot  be  mistaken,  and  they  would  be 
serious  and  afllicting.  The  Seceding 
State,  whatever  might  be  its  relative 
magnitude,  would  speedily  and  dis- 
tinctly fe.  1  the  loss  of  the  aid  and 
countenanc  '.  of  the  Union.  The  Union, 
losing  a  pr  portion  of  the  National  rev- 
enue, wr  lid  be  entitled  to  demand  from 
it  a  proportion  of  tho  National  debt.  It 
would  be  entitled  to  treat  the  iidiab- 
itants  and  tho  commerce  of  the  sepa- 
rated States,  as  appertaining  to  a  foreign 
country.  In  iniblio  treaties  already 
made,  whether  commercial  or  political, 
it  could  claim  no  participation,  while 
foreign  powers  would  unwillingly  calcu- 
late, and  slowly  transfer  to  it,  any  por- 
tion of  the  respect  and  confidence  homo 
towards  the  l!iiited  Slates.  Evils  more 
alarming  may  readily  be  perceived.  The 
destruction  of  the  common  bond  would 
be  unavoidably  attended  with  more  se- 
rious conse(piencis  than  the  mere  dis- 
union of  the  parts.  Separation  would 
produce  jealousies  and  discoid,  which 
in  timi'  Would  ripen  into  nmtual  hostili- 


ties; and  while  our  country  would  be 
weakened  by  iiilernal  war,  foreign  ene- 
mies would  be  encouraged  to  invade, 
with  tho  nattering  prospect  of  sulKlnin'4 
in  detail  tlio.se  whom  collectively  liny 
would  dread  to  encounter."  Ibid,  pp. 
2!)8,  liOn. 

■■i  As  lute  as  1893,  in  a  book  writt<;n  by 
a  Senator  from  Ma.ssachu8etts,  is  the  re- 
markable statement:  "When  the  Con- 
stitution was  adopted  by  tho  votes  of 
States  at  I'liihuleliihia,  and  accei)led  by 
the  votes  of  Slates  in  popular  conven- 
tions, it  is  safe  to  say  that  there  was  iu)t 
a  man  in  tlie  country,  from  Washington 
and  Hamilton  on  the  one  side  to  (ieorge 
Clinton  on  tho  other,  who  regarded  the 
new  system  as  anything  but  an  experi- 
ment entered  upon  by  the  States,  and 
from  which  each  and  every  State  had 
the  riglit  peaceably  to  withdraw,  a 
right  which  was  very  likely  to  bo  exer- 
cised. When  tho  Virginia  and  Ken- 
tucky resolutions  ap]ieared,  they  weio 
not  opposed  on  constitutional  grounds,'' 
(Henry  Cabot  Lodge,  l,ife  of  Daniel 
Webster,  pp  176,  177.)  That  the  I.UIer 
statement  by  Senator  Lodge  is  as  errone- 
ous as  the  lirst  is  shown  by  the  citations 
In  §  .12. 

<  See  The  Prize  Ciuses,  2  Jilaek,  r..!6: 
Wm.  Alexander's  Cotton,  2  Wull.,  404; 
Muller  v.  V.  S.,  U  Wall.,  208;  Tyler  r. 
Defrees,  11  Wall.,:!:!!. 

'•  An  indictment  against .lelf.-rson  Da- 
vis was  ipiashed  by  C^hlef  Justice  Chase, 
Dec.  fi,  1808,  upon  the  ground  that  the 
Fomteenth  Amendment  was  a  bar. 
Judge  Underwood  dissented.  Sub.se 
quently  all  in<lictmenls  auninst  Davis 
were  dismissed  on  account  of  the  procia- 


§  no.] 


AUTHOUITIES   FOR    SEC1-.    UON. 


11. 


vi, ;  1)1'  piracy  fjfTicei's  of  Confedemtu  jji'iviiteci's.''  No  attempt  was 
iiiailr  U)  (Iniw  an  iiidictiiu'ut  afrninst  tliu  whole  Southern  people. 
After  pe:i('e  was  restored  the  Southern  States  were  ruk:d  iia 
(■(PiKpuicrl  ])rnvinees  until,  and  some  even  after,  they  ratified 
iiuicmhiu'iils  to  tlu!  Constitution  tliat  destroyed  the  institution 
til  protect  whicli  they  hegan  the  war,  estaljlished  eitizensiiip  of 
I'nitcd  States,  and  gave  to  the  Federal  government  full  power 


the 


t^i  protect  all  its  citizens  from  hostih;  action  hy  the  States  of 
i!icir  residence.  .Vnd  finally,  no  one  who  accepts  the  doctrine 
(if  tlie  Declaration  of  Independence  can  dispute  the  moral  right 
(if  secession  and  of  revolution  when  there  is  no  other  remedy 
iiyainst  tyrannical  oppression  by  a  lawful  government." 


Illation  iif  general  amnesty,  Dec.  2&,  1808. 
(Cliascs  Decisions,  vol.  i,  lL'2-lii4).  The 
or.ly  trial  fur  tfeason  in  connection  with 
tlie  Civil  War  w.is  that  of  Grealliouse, 
llar|ieii(Jing  and  Eubey,  for  lilting  out 
a  f'onfoderate  privateer.  'I'liey  were  eon- 
vii'ttil  and  sentenced  to  fine  and  inipris- 
iiunieiil,  but  subsequently  pardoned. 
{V.  S.  I).  Cireathouse,  2  AbboU,  p.  .101; 
(irealhmi.se's  Case,  ibid.,  p.  .'!82.  Sec  also 
r.  S.  D.  Greiner,  -4  I.aw  Uep.  (14  Law 
l!ip.  N.  R.)  (11.)  This  subject  and  that 
of  the  trials  before  military  commis- 
sions  will  be  discussed  subsequently. 

"  The  trial  of  tho  officers  of  tlio  Savan- 
n.ih  in  the  U.  8.  Circuit  Court,  S.  D.  N.  Y., 
in  Octolier,  18C1,  where  the  jury  disa- 
greed, is  well  worth  reading.  In  1802, 
the  captain  of  the  .Jefferson  Davis  was 
found  guilty  of  piracy  and  Bentenccd  to 
deatli  by  the  I'nited  States  Court  at 
I'liiladelpliia,  but  a  tlireat  of  reprisals 
pnvented  his  execution.  (Davis,  Uiso 
and  Kail  of  the  Confederate  tjovernrnent. 
vol.  ii,  ),  .  11,  12. 

'  "TliataHtiile,  or  any  other  great  por- 
tion of  the  peoplo,  sul'ferlng  under  long 
and  intolerable  oppressions,  and  having 
trii'd  all  constitutional  remedies  witliout 
tlie  liope  of  redress,  may  liave  a  natural 
riglit,  wlien  tlieii  liaiipiness  can  be  no 
otlierwiso  secured,  and  wlien  lluiy  can 
do  .so  witliout  greater  injury  to  others,  to 
absolve  themsnlvesfrom  their  obligations 


to  the  govorninent,  and  appeal  to  the  last 
resort,  need  not,  on  the  present  occasion, 
be  denied.  The  c.\istence  of  this  right, 
must  depend  upon  the  causes  which  may 
justify  its  exercise.  It  is  the  ultima 
ratio,  which  presupposes  that  the  proper- 
appeals  to  all  other  means  of  redress 
liavo  been  made  in  good  faith,  and  which 
can  never  be  rightfully  resorted  to  unless 
it  be  unavoidable.  It  is  not  tlie  right  of 
the  state,  but  of  the  individual,  and  of 
all  the  individuals  in  the  state.  It  is  tho 
right  of  mankind  generally  to  secure,  by- 
all  means  In  their  power,  the  blessinga 
of  liberty  and  happiness  ;  but  when,  for 
these  purposes,  any  body  of  men  have 
voluntarily  associated  themselves  under 
a  particular  form  of  government,  no  por- 
tion of  them  can  dis.solve  theas.sociatioii 
without  acknowledging  tlie  correlative 
right  in  the  remainder  to  decide  whether 
tliat  dissolution  can  be  permitted  con- 
sisiently  witli  the  general  happiness.  In 
this  view,  it  Is  a  riglit  dependent  \ipon 
the  power  to  enforce  It.  Such  a  right, 
though  il  may  be  admitted  to  pre-exist, 
and  cannot  be  wholly  surrendered,  is 
neces.sarily  subjected  to  limitations  in 
all  free  governments,  and  in  conii)act.s 
of  all  kinds,  freely  and  voluntarily  en- 
tered into,  and  in  which  the  interest  and 
welfare  of  the  ii  lividual  become  identi- 
fied with  tliose  of  the  community  of 
which  he  is  a  member.     In  compacts 


116 


XATUItK    Ol''    CONSTirrTION. 


[('UAi'.  ir. 


Jj.'JI.  Karly  Assertions  <»f  tlio  Jii^lit  of  Soeossion. 

Tlic  liist  tlircat  (if  secession  nhvr  the  iiilojjtion  of  tlie  (.'onstitu- 
tiou  wiis  -11  tlie  iirst  Seiiatt',  June  lltli,  178!t,  in  the  debate  upon 
tlie  Iirst  tarilT  hill.  Senator  I'ieree  Hutlcr  of  South  Clarolina 
"llainefl  away  and  tlnvateiu'd  a  dissolution  of  the  Union  with 
rey'ard  to  his  State,  as  sure  as  (iod  was  in  the  iirmauieut."  '  A 
similar  threat  was  umde  to  the  House  of  Representatives  hy 
(ieortje  Cabot  of  Massachusetts  in  case  of  its  refusal  to  make  the 
appropi'iations  ueeessary  to  (tarry  the  finy  treaty  into  effect.^ 

It  has  been  claimed  by  the  supporters  of  the  right  of  secession 
that  in  180'5  the  legislature  of  ^lassachusetts  resolved,  on  the 
acquisition  of  liiuiisiana,  — 

"That  tln!  annexation  of  Louisiana  to  tlie  I'nion  transcends  the 
constitiitioual  power  of  tlie  j^ovornnicnt  of  the  I'liited  States.  It  forms 
a  now  {'onfederacy  to  which  the  States  united  by  the  former  compact 
are  not  bound  to  adliore."' 

Although  this  a.ssertion  is  probably  unwarranted,*  there  can  be 
but  little  doubt  that  at  that  time  some  of  the  leading  Federalists 
in  Massachusetts  planned  the  secession  of  the  New  iMigland  States 


between  iinlividuals,  however  deeply  thpy 
may  affect  their  rolalioiis,  these  princi- 
ples are  acknowledged  tu  create  a  sacred 
obligation  ;  and  in  compacts  of  civil  gov- 
ernmer's,  involving  tho  liberty  and  happi- 
ness of  millions  of  m.inkind,  the  obliga- 
tion can  not  be  less."  Andrew  Jackson, 
Message  on  Nullification,  Jan.  IG,  1S.",.3. 

So  Webster  said  in  his  reply  to 
Ilayne  ;  "  There  may  bo  extreme  cases, 
in  which  the  people,  in  any  mode  of  as- 
sembling, may  resent  usurpatlon,and  re- 
lieve them.selves  from  a  tyrannical  gov- 
ernment. No  one  will  deny  this.  We,  sir, 
who  oi)pose  the  Carolina  doctrine,  do 
not  deny  that  the  people  may,  it  they 
ehoose,  throw  off  any  sovernment,  when 
it  becomes  oppressive  and  unbearable, 
and  erect  a  better  in  its  stead.  We  all 
know  that  civil  institutions  are  estab- 
lished for  the  public  beiietit,  and  that 


§  ;il.  1  Macliiy's  Journal  of  June  11, 
ITSil.  Sket.'luwof  Di'bali'in  tlioFir-i 
Senate  of  tho  t'nitcd  States,  by  Wil- 
liam llaclay  (Isl  cii.)  p.  77. 

-  Jcrferson,  Ana,  Workii  (1st  ed.j, 
vol.  ix,  J).  1!)5. 

^  Tyl(M-,  Lif."  of  Taney,  p.  3.33.  See 
also  Stephens'  History  of  the  War  be- 
tween tli(>  Slates,  vol.  i,  p,  510,  wh(  ;'e 
till' uutlior  says,  "Whether  this  roso- 
ution  was  in  fai't  passed  by  the  Massa- 
ehimetts  Li'gislatureor  not,  I  liavenol 
been  able  to  ascertain  with  aVjsolulc 
certainly." 

♦  The  nceomplislied  librarian,  Jlr. 
Francis  Vaugliaii  of  tho  Social  Law 
Library  of  Coslon,  has  very  kindly 
searched  the  indices  of  the  journals  of 
both  Houses  of  th<!  Massachusetts 
Genernl    Court    from    May,    1802,    t<> 


when  they  cease  to  answer  the  ends  of      March,  1804,  and  has  found  there  no 
their  existence  they  may  be  changed."         trace  of  such  a  resolution. 


V'^-] 


AUTHOniTIKS    Foil    SKCKSHION. 


117 


1111(1  tilt!  fm'inatioii  of  a  Northern  Confederacy/'  In  1811,  during 
ihr  debate  on  tlio  1)111  for  the  admission  of  Louisiana  as  a  State, 
.Idsiali  Quiney,  a  member  from  Massaehusetts,  said  in  the  House 
(if  l!(>])resentatives  :  — • 

"  It  in  my  deliberate  opinion  that  if  this  bill  passes  the  bonds  of  this 
Inion  !uo  virtually  dissolved;  that  the  Slates  which  compose  it  arc  free 
from  their  moral  oblijration  and  that,  as  it  will  be  the  ri(;hl  of  all,  so  it 
will  b(!  the  duty  of  some,  detiuilely  to  prepare  for  separation,  aniieably 
if  tiiey  can,  violently  if  they  must." 

The  Speaker,  Joseph  15.  Varnum  of  the  same  State,  held  that 
till'  languay-c  was  disorderly,  hut  the  House  by  a  vote  of  fifty-six 
lo  lifty-tlin  (■  reversed  the  rulinjr." 

Tile  war  (d'  1812  bore  with  especial  severity  upon  New  Kuffland. 
riic  action  of  the  Feileral  ^roverninciit  in  calliiij;-  the  mililia  thenee 
to  aid  ill  the  invasion  of  Canada  from  New  York,  the  pro]iosition 
(if  a  compulsory  draft,  and  other  measures,  created  great  indig- 
nation, '{"ills  resulted  in  the  famous  Hartford  Convention,  called 
by  Ma.ssachusettvS,  where  delegates  chosen  by  the  legislatures  of 
tiiat  State,  Connecticut  and  lihode  Island,  besides  a  few  chosen 
by  pojiular  meetings  in  New  Hampshire  and  A'ermoiit,  met  in 
secret  sessif'ii  during  December,  1814 ;  it  was  charged,  to  plot 
secession.  The  ollieial  2>i'<diininaries,  the  resolutions,  and  the 
rc])(irt  adopted  b\'  the  convention  eontuin  nothing  whicli  directly 
sii|i|iorts  the  theory,  although  a  threat  of  secession  is  clearly 
intimated,  and  nnltitication  is  expressly  threatened." 


■'■  Si'(!  letters  of  ThiiDlhy  riikcriiiK 
lo  HiKghirt  on  Pi'c.  21,  ISO;) ;  iiiid  to 
(IcoW  ("allot,  Jan.  2!t,  IHOl;  Lodijo's 

r,iiv  of  Caiioi,  vp.  ;i;i7-;i-io,  4t2,  -ini; 

lioj^'ir  fii-iswoUl  to  tllivcc  Woli'ott, 
Mai-rh  11,  l^lll;  .TiulKcT.iiipii.t,'  Itccvc 
of  ('(innccliiMit,  lo  rri.ili  Tracy,  Fcl).  7, 
1H(M. 

Hem  y  .Vdaiiis,  History  of  1  lie  Uiiiled 
States,  vol.  ii,  IM'.  H''"  lfi:l.  HIH.  l«t. 
isil,  ISH. 

'>  Henry  .\danis.  History  of  tlie  Unit- 
ed Slates,  vol.  v,  p.  ;12."). 

■"If  tlio  IJiion  111!  ilestinod  to 
dissolution  liy  rnuson  of  the  iindliplioil 
"iiuses    of     biul     admiuistnition,     it 


should,  if  possible,  be  llie  work  of 
peaeeablo  times  and  deliberal(>  eoii- 
sont.  Some  new  form  of  eonfederaey 
should  lie  siibslituled  unions  thoso 
Slates  wliieli  .sliail  intend  to  iiuilnlain 
a  Feileral  relation  to  e.ieli  other. 
Kvents  miiy  prove  that  llie  cause  of 
our  ealandlies  are  deep  and  perma- 
nent. Tliey  may  be  found  to  proeeeil, 
not  merely  from  thi^  blindness  of  prej- 
udice, pride  of  opinion,  violence  of 
party  spirit,  or  tin*  lonfusion  of  the 
.imes;  but  they  may  ln'  traced  to 
im|ilaeubt(!('omlilnutionsuf  indivlilu.als 
or  of  Sillies  to  monopolize  power  and 
olTlee,   to    tramplo    without    I'emorse 


118 


KATUUK   OF   THE   CONSTITUTION. 


[CHA1>.  II. 


Ill  1844,  tlic!  k'Efi.slature  of  ]\Iii8aiicliusotts  passed  a  series  ol 
rcsiiliiLioiis  upon  tlie  iiiiiiexation  of  Texas,  containing  the  threat, — 

" 'riiiit  the  projoct  of  the  annexation  of  Texas,  unless  arrested  on 
the  threshold,  iiiny  drive  these  States  into  a  dissolution  of  the  Union."* 

On  tiie  same  sul)jeet,  February  22d,  1845,  the  same  body 
adopted  aiiotlier  series  of  resolutions,  wbicli  included  the  state- 
ment that,  — 

"  As  the  powers  of  legislation  granted  in  the  Constitution  of  the 
I'nited  States  to  Congress,  do  not  embrace  the  ease  of  the  admission  of 
a  foreign  state,  or  foreign  territory,  by  Legislation,  into  the  Union, 
such  an  act  of  admission  would  have  no  binding  force  whatever  on  the 
people  of  JIassachusetts."" 

l''niin  tlie  enactment  of  the  tariff  of  abominations  of  1828  to  the 
outbreak  of  tht-  Civil  War,  threats  of  secession  and  assertions  of 
tlie  right  to  secede  were  constantly  made  by  Southern  statesmen.'" 

eracrgonolea  occur  which  are  either  be- 
yond tlio  reiich  of  the  judicial  tribunals, 
or  too  pressing  to  admit  of  the  delay 
incident  to  their  forms,  States  wliich 
liavo  no  common  umpire  must  be  their 
own  judges,  and  execute  their  own 
decisions.  It  will  thus  be  proper  for 
the  several  States  to  await  the  ultimate 
disposal  of  the  obnoxious  measures 
n-conimended  by  the  Secretary  of  War, 
or  pending  before  Congress,  and  so  to 
use  their  ])ower  according  to  the  char- 
acter tliese  measures  shall  fina'ly  as- 
sume, as  effectually  to  protect  their  own 
sovereignty,  and  the  rights  and  liber- 
ties of  their  ci'izens."  (Ueport  of  the 
Hartford  Omvenlion.  Dwiglit's  His- 
tory of  the  Hartford  Convention,  i)p. 
.1'il,  ^(V>.)  The  language  was  evidently 
eoiiled  from  llio  Kentucky  Hcsolution.s 
{iiifm,  §  :','!). 

"Slephi'iiH,  CoiiMtitutional  View  of 
tlu^  Late  War  between  the  States,  vol. 
1,  p.  .511. 

» Ibid. 

'0  See  Wilson,  Rise  of  the  Slave 
Power  in  the  United  Slates,  and  Van 
Hoist,  Constitutional  History  of  tho 
United  States,  passim. 


upon  lli(^  rights  and  interests  of  tho 
eoinnieri'ial  seetiuns  of  the  Union. 
Wherever  it  shall  appear  that  tho 
enusi's  are  radical  and  permanent, 
n  separation  by  oquitablo  arrange- 
ment will  be  jireferahle  to  an  alliance 
by  constraint  among  nominal  friends, 
but  real  enoinies."  (Keport  of  tho 
Karl  ford  Convention.  I)  wight.  His- 
tory of  tho  Hartford  Convention.) 
While  tho  bill  f(M-  a  draft  was  pending 
the  Coiinoctieut  legislalurn  authorized 
the  (Jovernor  in  caseof  its  passage,  to 
I'all  an  exlraordlnnry  session  to  con- 
sider nicasiires  "to  secure  and  iirc- 
servn  tho  rights  and  liberties  of  the 
peophi  of  this  State,  and  the  freedom, 
Hovereignly  and  independeneo  of  the 
same."  (Henry  Adams,  History  of  the 
United  Stales,  vol.  1.x,  p.  278;  citing 
Niles'  Ki'gister,  vii,  Supplement,  p. 
107.1 

"  In  ca.scs  of  deliberate,  dangerous 
and  palpable  infr.ictions  of  tho  Consti- 
tuiion,  affecting  the  sovereignty  of  a 
State  and  liberties  of  the  people  ;  it  is 
not  only  the  right  but  the  duly  of  such 
a  Stale  to  interpose  its  authority  for 
their  protection,  In  tho  manner  best 
calculaled  to  secure  that  end.    When 


§!]2.] 


VIUOINIA    AND    KENTUCKV    UKSOLUTIONS. 


119 


1^  32.  Virginia  ninl  Kentucky  Rosol  lit  ions. 

The  onactinent  of  the  Alien  and  Sedition  Liiw.s  '  l)y  tlie  Federal- 
ists was  the  (%uise  of  the  Kentucky  and  Virginia  resolutions, 
which  contained  tlie  fiiMt  germ  of  the  doctrine  of  nullification. 
'I'lic  draft  of  the  Kentucky  resolutions  was  made  secretly  by 
.Icficrsoii.  then  A'ice-President,  in  1798,  at  the  request  of  .Madison, 
.Iiilin  Hrcckcnridge,  and  Wilson  C.  Nicholas  of  Kentucky  ;2  iu 
(inlcr  to  unite  the  legislatures  of  the;  Anti-Federalist  States  in 
|in>tcsts  against  the  I'onstitutionality  of  those  laws.  It  was 
his  original  intention  to  have  them  first  introduced  iu  the 
legislature  of  Nortli  Carolina ;  but  a  change  in  the  politieal  eoni- 
|)U'xi()U  of  that  State  caused  him  to  abandon  this  idea;'''  in  which 
he  acted  wisely.  For  it  is  said  that  when  the  Virginia  resolutions' 
v.-ere  first  lU'esented  to  the  North  Carolina  legislature  they  were 
]irom])tly  voted  under  the  table.'*  The  original  draft  of  the  reso- 
hitions.  after  protesting  against  tiie  Alien  and  Sedition  Laws, 
and  also  other  acts  punishing  crimes  for  causes  not  specifically 
eiiunicratetl  in  the  Constitution,  declared  them  "altogether  void 
anil  of  no  force."  as  infringements  of  the  Constitution  for  reasons 
therein  assigned,  and  appointed  a  Connuittee  of  Conference  and 
Correspondence  to  connnunicate  the  rescdutions  to  the  legislatures 
of  the  several  States,  with  a  statement  of  the  opinion  of  the 
resolving  States  upon  the  nature  of  the  Federal  compact  which 
contained  the  following  langiuige  :  — 

"  Tliat  therefore,  this  eommonwealth  is  determined,  as  it  doubts  not 
its  co-States  are,  to  submit  to  undole<!;ated,  and  cousecjiiently  unlimited 
pen  cr.s  in  no  man,  or  bodj'  of  men  on  eartli ;  that  in  cases  of  an  abuse  of 
the  delegated  powers,  the  members  of  the  General  Government  being 


ij  D'J.  '  Tlii'sc  statutes  am  jirinti'il 
In  til.'  A|i|icM(IJx  to  tills  chaptri',  infra. 

2  JclTn-sdii's  Ic'ttn-to  J.  Calii'l  Urcck- 
I'lirliluc,  Dec.  11,  isai.  Ji'lTcison's 
WcirUs.  iHt  rd.,  vol.  vli,  |i.  '2'2'.l.  In  this 
I'llltioM  of  .Ji'tTiTsim'.s  Works,  lii.s  I'or- 
i'i's|i(iiic|i'iil,  was  iMToiii'ously  ilrsiTlliril 
as  Nicliolas.  The  lot  tcr  was  In  reality 
written  to  the  son  of  Jolin  Breckln- 
rlilge,  and  is  still  In  tho  possession  of 


his  deaeoiidttnts.  Sop  Soiitliern  Bivouac 
ofJIareli,  IHHC,  and  TheKentueky  Res- 
olutions of  17!IK,  by  E.  0.  Warfleld, 
]ip.  l;i(i-141,  where  tlie  nilstuko  is  ox- 
plained  anil  eoirected. 

■'  .TelTerson  to  W.  {'.  Nicholas,  quoted 
liy  Wanlehl,  The  Kentueky  llesolu- 
tioiis,  p.  140. 

*  Madison  to  JolTorsou,  Madison's 
Works,  vol.  11,  p.  ir)2. 


120 


NATUUE  OF  THE  CONSTITUTION. 


[(;1IA1*.  II. 


chosen  by  llie  people,  a  clmngo  by  tlie  people  would  be  the  constitu- 
tional renunly ;  but,  where  powora  are  iissinned  which  have  not  been 
(U'le^atoil,  a  nulliiication  of  the  act  is  the  rightful  remedy :  that  every 
State  lias  a  natural  rijiht  in  cases  not  within  the  compact  (casus  non 
foederis)  to  nullify  of  their  own  authority,  all  assumptions  of  power  by 
others  within  their  limits  ;  that  without  this  right,  they  would  be  under 
the  dominion  absolute  and  unlimited,  of  whosoever  might  exercise  this 
right  of  judgment  for  them." 

"  That  these  successive  actrf  o''  the  same  character,  unless  arrested  at 
the  threshold,  must  necessarily  drive  these  States  into  revolution  and 
blood." 

'J'lie  i)ai)i'r  conc-ludi'd  witli  the  expression  of  the  hoi^e  — 
"That  the  co-States  recurring  to  their  natural  right  in  cases  not 
made  Federal,  will  coiieur  in  declaring  these  acts  void,  and  of  no  force, 
and  will  each  take  measures  of  its  own  for  providing  that  neither  tiiese 
acts,  nor  any  others  of  the  (ieneral  Government,  not  plainly  and  iu- 
tentiomdly  authorized  by  the  Constitution,  shall  be  exercised  within 
their  respective  territories." ' 

Tlic  State  k'jfisliiturc's  of  Kentuckj-  and  Virffinia,  however, 
were  ut  lirst  not  disposed  to  go  so  far  as  Jefferson  sugfj;ested. 
The  lirst  Kentucky  J{est)lutions  passed  the  legislature  and  were  ap- 
proved by  the  Governor,  November  lOtli,  17US.  'Ihe}'  contained 
tlie  substance  of  .refl'crson's  draft;  niodilied  his  hiiiguage  I)y  omit- 
ting his  declaration  of  tlie  right  of  nulliiication ;  said,  after  eon- 
dcnuiing  the  Alien  and  Sedition  Laws,  — 

"That   these   and   successive   acts  of   the   same   character,   unless 
arrested  on  the  threshold  may  tend  to  drive  the  States  into  revolution 
and  blood  ;  " 
and  concluded  merely  with  the  phrase,  — 

"  That  the  co-States  recurring  to  their  natural  right  in  cases  not 
made  Kcdcral,  will  concur  in  declaring  these  acts  void  and  of  no  force, 
and  will  each  unite  with  this  eoninionwealth  in  reipiesting  their  repeal  at 
the  next  session  of  t'ongress.'"' 

The  \'irginia  Resolutions  were  drawn  by  ^failisou.  and  were 
much  milder  in  form  both  as  first  presented  and  as  linally  adopted. 


''  .Jefferson's  Wdiks,  1st  o<l.,  vol.  is,      of  Aiiieiiciin  Ilisloiy,  pp.  2H7 -295.   The 
jip.  -tCil.  171.  resohilioiis  iiic  priiiteil  in  full  in  the 

>>  I'lestoMs  UoemiuMits  Illustrative       iiiipeiulix  to  this  clmiiter. 


s  :•.' 


:!J.] 


VIUOINIA   AND    KENTUCKY    KHlSOLrTIONS. 


llil 


1  A 

,'i 


T1k\  coiitiiiufd  a  protest  iijTiiiiist  tho  obnoxious  laws,  iiiid  \v- 
(|iustc(l  tlie  other  Stiitew  to  — 

)iiciir   with    tills    coinmouwcaltli    in   doclnriiif;   iiH    it   docs   lu'reby 

declare  that  tlie  acts  aforesaid  are  uucoustltutloiial,  and  that  the 
iH'cessary  and  proper  measiires  will  be  taken  by  each,  for  eo-opcrating 
with  this  State  in  niuintaining  tlie  unimpaired  authorities,  rlj,dits  and 
lilii'ities  reserved  to  the  States  respectively,  or  to  the  people." 

'i'lu'V  further  dechired  — 

"  That  tills  Assembly  doth  explicitly  and  ])ereniptorily  declare  that  it 
views  the  powers  of  the  Federal  (loverument  as  resultln<^  from  the 
(■(impact,  to  which  the  States  are  parties,  as  limited  by  the  plain  sense 
and  intentions  of  the  iustruincnt  constitutiii};  that  compact ;  as  no 
fiitlier  valid  than  they  are  authorized  liy  the  grants  enumerated  in  that 
compact ;  and  that  in  case  of  a  deliberate,  palpable  and  dangerous 
exercise  of  licr  powers  not  granted  by  the  said  compact,  the  States,  who 
are  the  parties  thereto,  have  the  right,  and  are  in  duty  bound,  to  iiiler- 
pose  for  arresting  the  progress  of  the  evil,  and  for  maintaining  within 
llieir  respective  limits,  the  authorities,  rights  and  liberties  appertaining 
lo  them." 

As  tirst  introduced  by  the  celebrated  Joiin  Taylor  (d'  (  aroliuo 
CoMuty,  tlic  d(^claration  of  the  unconstitutionality  of  the  ails 
(■(intaincil,  after  the  word  "  n:icoiistitutional,"  "and  not  laic,  hut 
iiffrrlif  null,  void,  and  of  no  furri'  or  fffcrt."  The  declaration 
(■(inecrninsf  tlio  nature  of  the  constitutionality  of  the  cf)nipact  aLso 
slated  at  first  concerning  the  same  :  "  to  wliieh  the  States  idouf 
are  jiartics."  The  words  in  italics  were  stricken  out  in  Ihc 
legislature  hy  unanimous  consent."  'J'he  resolutions  were  adopted 
after  coiisideralih'  discussion  hy  a  vote  in  the  Ifousc  of  Deleq;ates  of 
(IMC  liundred  to  sixt^-three,  Decemlier  21,  17US,  and  in  the  Senate 
(if  foiuieeii  to  tliive,  tliree  days  later.  Throughout  the  debate,  the 
iilea  that  force!  would  he  used  in  ojiposition  to  the  Federal  govern- 
iiieiit  was  ex]iressly  rei)udiated  hy  the  suppoi'tcrs  of  the  resolutions." 


•  I'lic'  Virginia  Keport  of  17'.)!)-18n0, 
tmicliing  till' Allen  iinil  Sedition  Laws, 
liwllii'r  Willi  lli(^  Virginia  Kosolutionh 
■  if  Dim'.  21,  171W,  tlio  debate  and  pro- 
ii'i'ilings  tlici'iMin  in  the  Honse  of  Delo- 
^' Ill's  in  Virgiiilii,  and  S(!Vi'nil  other 
ilniiinienlH  illustrative  of  tin?  lleport 
and   Itcsolulious.     llielinioiid :   J.   W. 


Knndolpli,  1:21  llain  Street.  Also  for 
sale  liy  FraiicU  Taylor,  Wasliiii^'ton  ; 
Ciisliingit  lii'otlior,  Baltimore;  and  T. 
A-  .T.  W.  .Tohnson,  I'liiladeliiliia,  Pa. 
1800 ;  [1.  US. 

"John  Mereer  said,  "  Korco  is  not, 
tlionnlil  of  liy  any  one  "  (ibid.,  p.  •I'ii. 
Juiiios  Barbour:    "He  was  lor  using 


U-2 


NATritK  or  Tin;  constiti'tiox. 


[CIIAI' 


Sfvcu  State  U'irislatiircs  replied  to  tlu'se  resnlutioiiH,  coiKlciiiiiin^ 
till'  siiiiii'  in  jjeiicnil  liuiKiuige,  and  in  Home  eases  anirniinjf  tia*  (ioc- 
triiif  th;it  tia'  Siiprenu!  ('onit  of  tla'  I'nited  States  liad  tia;  ultimate 
anllun'ity  of  deeiding  on  the  constitutionality  of  an  act  of  ('(in- 
gress." Kentueky  rejoined,  Novendier  14th,  179i>,  l>y  a  preamliir 
ami  resolution  wliich  concluded  in  languagt!  largely  taken  from  tlu^ 
omitted  jiart  of  JefTei-son's  original  draft:  — 

"  Tliat  tlie  Hovcrul  Stntea  who  formed  tiiat  instrument"  (the  Consti- 
tution), "being  sovereign  and  independent,  have  the  unqueatioia'd 
right  to  judge  of  the  infraction;  and  that  a  nuUifleation  by  those 
sovereignties,  of  all  unauthorized  acts  done  under  color  of  that  iiislni- 
ment,  is  the  rightful  remedy.  That  this  Commonwealth  does,  iukUt 
the  most  deliberate  reconsideration,  declare  that  the  said  Alien  ntiil 
Sedition  Laws  are,  in  their  opinion,  palpable  violations  of  the  said 
Constitution  ;  and,  however  cheerfully  it  may  be  disposed  to  surrender 
its  opinion  to  a  majority  of  its  sister  States,  in  matters  of  ordinary  or 
doubtful  policy,  yet,  in  momentous  regulations  like  the  present,  wliieli 
80  vitally  wound  the  best  rights  of  the  citizen,  it  would  consider  a  silent 
aeqiiieseence  as  highly  criminal ;  that,  altliough  this  Conunonwealth,  as 
a  party  to  the  federal  comiiact,  will  bow  to  tlie  laws  of  the  Tnion,  yet 
it  does,  at  the  same  time,  declare,  that  it  will  not  now,  or  ever  heie- 
after,  cease  to  oppose,  in  a  constitutional  manner,  every  attempt,  at 
what  quarter  soever  offered,  to  violate  that  compact:  and  finally,  in 
order  that  no  pretexts  or  arguments  may  be  drawn  froTu  a  supjiosed 
ae(iuiescence,  on  the  part  of  this  Commonwealth,  in  the  constitutionality 
of  those  laws,  end  be  thereby  used  as  precedents  for  sinular  future 
violations  of  tie  federal  compact;  this  Commonwealth  now  enters 
against  them  its  solemn  i)rote8t."  '" 


11(1  vidli'iK  o.  It  IS  the  iioculiiir  liless- 
iii^i  (if  I  lie  AiiM'iiciin  I'l'dplc  to  have 
redress  «itliiii  tlieir  reach  liy  eonstl- 
tatiiiii.'il  mid  |ieiieefiil  iiieiiiis.  He  was 
f(ir  fjiviiiH  ('impress  an  <i|i|iiirtuiiit,y  of 
re|ie,illiii;  llidse  (iliiKixiciu.s  liiws  eom- 
pliilni'il  of  in  th((  resoliiUoiis."  In 
eliisiii);  Uie  dehiile  in  llie  ('iiiiiniittee 
<if  ilie  Wliole,  "Mr.  Jolin  Tiiyliir  said 
lie  would  exjilaia  in  a  few  words  wlial 
lie  had  before*  said.  Tliat  the  plan 
projiosed  by  the  residution  would  not 
eveiiluato  in  war,  1ml  minht  in  u  Con- 
vi'utioa.     Ho  did  not  admit  or  eon- 


toinplato  that  a  Convention  would  be 
called.  Heiinly  saiil,  that  if  <_'oii(;r(>sti 
upon  beiiiH  addressed  to  have  those 
laws  reiieahvl,  shoiihl  iiersist,  tliey 
niiglit,  by  u  concurrence  of  tliree- 
fourths  of  the  Slates,  be  conipelleil 
to  call  a  Convention."     Ibid,  p.  14S. 

"  Delaware,   IJIiode  Island,  Massa- 
chusetts,  New  York,  Connecticut,  New 
llani|isliire,  Vermont.     Ibid.,  pp.  ICiH 
177.     Elliot's  Debutes,  2(1  ed.,  vol.  iv. 
p|i.  5,12-53!). 

>i  See  the  whole  Kosolulion  In  Ap- 
l)endi.\  to  this  chapter. 


r.v2.] 


VIIUUXIA    AM)    Kl'.NlirivV    l:KS(iL(  TK  (NS, 


128 


'I'lic  Mrjjinia  lIoiiHeof  Delc'fifiiti'H  ivIVircd  tlic  icsoliitidii:;  of  tlu; 
(itlicf  Stiitc'M  to  a  (•oinmitlct'  of  wliicli  Madison  was  tlic  cliaii'iii.iii. 
M;i(lis(iii's  famous  I'cpoit  (Icfciidcd  tin;  resolutions  and  conliint'd 
an  I'lidiorate  arjjuineiit  atfainst  tiic  I'onstitutionality  of  the  Alioii 
;iiii[  Sedition  Laws,  lie  reassertc^d  tin;  riffjit  of  tlie  States  to  in- 
tei[i(ise  in  "the  ease  of  a  didil)erate,  palpalile  and  danj^erous" 
liieacli  of  tlie  Constitution  liy  tlie  (  xeirise  hy  liie  l''edeial  f^ovelil- 
iiient  of  powiiix  not  jfranted  to  it,  witiiout.  iiowever.  stating 
speeilieally,  tiut  manner  in  wliieli  tliat  interposition  siiould  i)e 
Mi;iiie. 

lie  said  tliat  sueii  ai'tion,  "wlietlii'i'  made  hefore  or  after  jndi- 
<i;d  deeisions "  ujion  the  validity  of  the  laws  in  ipiestion,  ean 
not  — 

'•  lie  deemed,  in  any  point  of  view,  iin  assumption  of  the  otilee  of  ii 
jiidiri'.  The  declarations,  iu  such  cases,  are  expressions  of  opinion,  tui- 
accoaipanied  widi  any  other  effect  than  what  they  may  produce  on 
(i|)iiiii)n,  by  excitin}?  reflection.  The  expositions  of  tiie  judiciary,  on 
til''  otlier  hand,  arc  carried  into  effect  by  force.  Tlie  fornu-r  may  lead 
1(1  a  clianjie  in  the  legislative  expression  of  Ihe  j^iMieral  will ;  [jossibly  to  a 
(•liiinL.'e  ill  the  opinion  of  the  judiciary ;  the  latter  eiifm-ees  the  j^eneral 
will,  while  that  will  and  the  opinion  continue  unehan<;ed." 

He  stated  that  "the  necessary  and  proper  measures"  of  co 
o]jiiiition  whi(di  had  l)een  supj^ested  to  the  other  States  were 
nu'.nis  — 

'•stiietly  within  the  limits  of  the  Constitution.  The  lei^islatures  of 
the  Slates  nii<;ht  have  made  a  direct  representation  to  Coiijiress,  with  a 
view  to  obtain  a  rescinding  of  the  two  offensive  .'lets;  or  they  might 
have  represented  to  their  respective  Senators  in  Congress  their  wish 
tliat  two-thirds  thereof  would  propose  an  expl'inatory  aiiieiidinent  to  the 
Ciiiistitution  ;  or  two-thirds  of  themselves,  if  such  had  been  their  option, 
iiiit;lit  l)y  an  application  to  Congress,  have  obtained  a  t'oiiveiitioii  for 
the  same  object.  These  several  means,  though  not  cipially  eligilile  iu 
thi'iiisclves,  nor  probably  to  the  States,  were  all  constitutiuiially  open 
for  consideration.  And  if  the  (leueral  Assembly,  after  declaring  the 
two  acts  to  be  unconstitutional,  the  first  and  most  obvious  proceeding 
on  the  subject,  did  not  undertake  to  point  out  to  the  other  .States  a 
choice  among  the  farther  measures  that  might  become  necessary  and 
proper,  the  reserve  will  not  be  miseonsfrued  by  liberal  minds  into  any 
culpable  imputation." 


1-24: 


NATUKE   OF   THE   CONSTITUTION. 


[CHAI*.  ir. 


'I'lie  legislature  adopted  tlie  report  and  a  final  resolution  adher- 
liii.'  to  their  original  resolutionH." 

Tlie  advocates  of  nullification  and  secession  have  referred  to 
tliese  proceedings  as  conclusive  evidence  of  the  oj)inions  of  Jeffer- 
son and  Madison  in  support  of  the  doctrines  which  were  advocated 
later  by  Calhoun  and  Davis.  The  claim,  however,  has  no 
foundation.  Madison,  during  the  time  of  nullification,  expressly 
denied  the  claim  that  tlie  pro(!eeding8  of  the  legislature  of  Vir- 
ginia advocated  a  legal  right  of  nullification ;  and  pointed  out 
that  the  proceedings  suggested  in  iiis  rejjort  and  resolution  waiv 
pe.aceahle  measures,  the  right  to  exercise  which  under  the  Consti- 
tu  'on  was  universally  conceik^d.''^  Alter  the  adoption  of  tlie 
resolutions  and  the  report,  the  Se<lit'in  Law  was  enfoiced  in  tlic^ 
most  offensive  inanner  in  \'irginia  witlioul  any  (li)struetion  by  the 
State's 

The  language  of  the  Virginia  resolutions  is  more  ambiguous 
than  that  in  the  report,  and  this  was  undoubtedly  intentional,  in 
order  that  they  might  suggest  a  threat,  the  execution  of  whicli  was 
never  intended.     'I'he  Kentucky  resolutions,  esiieeially    that   of 


11  The  Virgiiiiii  Ki'poilof  1771»-1HI)0, 
toui'liinj;  (lii'  Alii'ii  ;uh1  JSi'ilitioii  Laws, 
Ac,  riiiliul.'lpliia,  l^j.">(),  |i.  2:);t. 

1'^  HailiMoii's  IcItiT  (d  Eihviml  F,v- 
prett,  AuKMst,  IHHO,  iliid.,  2t!l  •irw!. 
Soo  iilso  otlu'f  Hlati'iiK'tils  liy  Madi- 
Hou,  c[ui)t''(l  ill  Bi'iitiin'w  Thirty  Y(>ar«' 
Viow,  vol.  i,  pp.  Sni-SRO. 

1'  By  l\w  trial,  coiivii'tioii  niul  scii- 
tiMicc  of  t'alli'tuli"!',  tlio  I'oiidiiL't  of 
wliicli  was  0111'  of  till'  Ki'i'ii'i'lf'  fni'  lli» 
iiMIicai'hiui'iil  of  .Tiidni"  Cliasi'.  (!iv- 
oriior  Moni'oi' said,  in  liiri  iiii'SHaKi'  to 
tlio  Vii-fjiniaii  (tciicral  Assi'iiilily,  in 
I)iM'ciul)<>r,  ISUO  :  •■  In  roiiiicction  willi 
this  milijcct  it  Ih  proper  to  add,  that, 
Hiiico  your  last  scsHioii,  the  sedition 
la-.v.  Olio  of  the  acts  coinplaiiu'd  of, 
has  lii'cii  carrii'd  Into  I'ffi'cL  in  this 
i'oiiimoinv(  altli  liy  I  Ik-  doiisioii  of  a 
fiuleriil  court.  I  notice  this  event,  not 
with  a  viow  of  censuring  or  erltlclMlni^ 
it.  Tlie  tiaiisaelion  lia.s  fjoiie  to  the 
world,  and  tlio  impartial  will  jud^i:  of 


it  as  it  deservi's.  I  notice  it  for  tim 
])nrpone<)r  remarking;  tJial  tlieiliM'ision 
was  executed  with  tlie  .same  onler  ami 
traiii|iiil  siihniissioii  on  the  I'art  of  the 
people  as  could  have  lieeii  shown  liy 
them  on  a  similar  occasion  to  any  the 
most  neee.s.sary,  constitutional  and 
jHipular  acts  of  tlio  f^overnmont.  The 
(ieneral  Assembly  and  the  jjood  |)cople 
of  Mils  C<iinmoiiW(-altli  have  aciiulttcil 
themsolvcs  to  their  own  consciences 
and  to  IlK'ir  brethren  In  Ainerica  in 
support-  oi  a  cause  which  they  deiin  a 
national  one,  by  the  sl.-nid  which  they 
inaile,  and  the  sentinn'iits  they  ex- 
pr(>sscd  of  these  iicis  of  the  general 
governnient ;  but  they  havi>  looked 
for  a  cliaiiKo  in  that  respect,  lo  ii 
ehaiiije  in  the  public  opinion,  which 
oiiulit  to  lie  free  ;  not  to  measuri'S  of 
violence,  (list  onl  and  disunion,  which 
they  abhor."  licnlou's  Thirty  Years' 
View,  vol.  i.  p.  351. 


§:!:].] 


NULLIFICATIOU. 


i-2r> 


ITilO,  were  stronger,  but  the  riglit  therein  maintained  seems  charly 
to  liiive  been  rather  the  "  natural  right "  of  revoluti(ui,  than  the 
assertion  of  a  legal  right  recognized  by  the  Constitution. 

Tlie  design  of  Jefferson  was.  however,  aecomiilished.  as  he  un- 
doubtedly expected,  by  the  means  contemplated  by  the  Constitution, 
witliout  the  use  of  any  extraordinary  proceedings. 

I'ctitions  for  the  repeal  of  the  obnoxious  statutes  poured  into 
Congress  from  all  parts  of  the  Union."  The  powers  granted  ])y 
tliy  Alien  Law  seem  never  to  have  been  exercised.  The  prosecu- 
tions and  cimvictions  under  the  Sedition  Law  had  no  effect  except 
to  iiirrease  the  unpopuliirity  of  the  party  tliat  had  passed  it. 
.Ii'ifcrson  was  chosen  to  tlie  presidency  a  year  after  tiie  ad()])tion 
of  tlie  last  Kentuck}-  Resolution.  Before  his  inauguration  the  two 
nets  had  expired  by  their  terms  after  a  futili'  attempt  to  continue 
tlui  only  one  of  them  which  had  been  ap[)lie(l.'"'  Me  pardoned  all 
convicts  under  the  Sedition  Law,'"  and  the  fines  imposed  upon 
tlieni  were  repaid  afterwards  under  votes  of  Democratic  Con- 
gresses.'^  Neither  Joifei-son  nor  Madison  id'terwards  had  occasion 
to  reassert  the  doctrines  pronnilgated  in  tlie  faiiKius  report  and 
rcsohitions.  But  those  papere  remained  the  texts  to  wliicli  the 
expounders  of  State  rights  appealed  till  the  rights  of  .secession  and 
nulUfication  had  both  been  tried  and  both  had  failed. 


I 


^tVt.  The  Doftrine  of  Nullification. 

Struck  by  tiie  exi'iinle  and  taking  up  the  cue  of  .Jefferson, 
wiieu  the  South  was  injnivd  by  an  unjust  ami  oppressive  tariff, 
Calhoun  ex])an(led  and  set  forth  the  doctrine  of  nullilicatioji  for 
IhT  relief.  Tiie  reputat'on  of  its  author  and  the  solemnity  of  the 
cvculs  which  it  necasioned  seem  to  demand  that  it  be  fully  and 
fairly  stated  in  his  own  language  :  — 

"Tiie  great  and  leading  principle  is,  tliat  the  General  (ioveriiiiient 
oiiianatcd  from  tlie  jicoplo  of  the  several  states,  forming  distinct 
political  communities,  and  acting  in  their  separate  and  sovereign 
capacity,  and  not  from  all  of  the  people  forming  one  aggregate  political 

»  MoMiister'R History,  vol.  li,  p.  4'2n.  "  Act   of  .lul.v  4,  1840,  C,  St.  nl  L., 

"  Ibid.,  p.  r.32.  p.  mi  ;  Ai'tof  June  17,  1844,.(i  St.  nl  L., 

'"  Tuclcer's  Life  of  Jefferson,  vol.  11,  p.  924. 
p.  120. 


126 


XATriiK   OI'    TllK   CONSTITUTION. 


[CIIAP.  U. 


commnuily;  thtit  the  Constitution  of  the  United  States  is,  in  fact,  ii 
oonipact,  to  which  cacii  state  is  a  partj-,  in  tlio  ciiuraefor  already  do- 
(^crilied  ;  and  that  the  several  states,  or  parties,  have  a  right  to  judge 
of  its  infractions;  and  in  case  of  a  deliberate,  palpable,  and  dangeroiis 
exercise  of  power  not  delegated,  they  have  the  right,  in  the  last  resort, 
to  use  the  language  of  tlie  Virginia  Ucsolutions,  ^  to  interpose  for  arrexl- 
ing  the  proijress  of  the  evil,  and  for  m<iintai)iitiy,  icithin  their  retii>eclire 
limits,  the  authnritien,  rights,  and  liberties  appertaining  to  then.'  This 
right  of  intoi-j)osition,  thus  solemnly  asserted  by  the  Stai  ■  of  '-lia, 
be  it  called  what  it  may  —  State-right,  veto,  nullificatoi  ;,- 

other  name — I  conceive  it  to  be  the  fundamental  prim  ipio  of  our 
system,  resting  on  facts  historically  as  certain  as  our  revolution  itself, 
and  deductions  as  simple  and  demonstrative  as  that  of  any  political  or 
moral  trutli  whatever ;  and  I  firmly  believe  that  on  its  recognition 
depend  the  stabilty  and  safety  of  our  political  institutions."' 

"  To  realize  its  perfection,  we  must  view  •'.o  General  Government 
and  those  of  the  states  as  a  whole,  each  in  its  proper  sphere  independ- 
ent ;  each  perfectly  adapted  to  its  respective  objects ;  the  states  acting 
separately,  representing  and  protecting  tiie  local  and  peculiar  Interests; 
acting  jointly  through  one  General  Government,  with  the  weight  re- 
spcctivclj'  assigned  to  each  by  the  Constitution,  representing  and 
protecting  the  interest  of  the  whole,  and  thus  perfecting,  by  an 
admirable,  but  simple  arrangement,  the  great  principle  of  rei)resentatiou 
and  responsibilitj',  without  which  no  government  can  be  free  or  just. 
To  pre:^erve  this  sacred  distribution  as  originally  settled,  by  coercing 
each  to  move  in  its  prescribed  orb,  is  the  great  and  diUlcidt  problem, 
on  the  solution  of  which  the  duration  of  our  Constitution,  of  our  rnion, 
and,  in  all  probality,  our  liberty  depends.     I  low  is  this  to  be  effected? 

"The  questi<.n  is  new  when  applied  to  our  (leculiar  political  organi- 
zation, where  the  separate  and  conllicting  lerests  of  sociel}-  are 
represented  by  distinct  but  connected  governments  ;  but  it  is,  in  reality, 
an  old  q\iestion  under  a  new  form,  long  since  ])erfectly  solved.  When- 
ever separate  and  dissimilar  interests  have  been  se])arately  represented 
in  any  government;  whenever  the  sovereign  power  has  been  divided  in 
its  exercise,  the  experience  and  wisdom  of  ages  have  devised  but  one 
mode  by  which  such  political  organization  can  be  i)reserved  —  the  mode 
adopted  in  England,  and  by  all  governments,  ancient  and  modern, 
blessed  with  coi'stitutions  deserving  to  be  called  free  —  to  give  to  cr... ,, 


§  ;i;1.  1  Mr.  Calhouirs  ndilrcss,  stiil- 
iii;^  lii«  opinion  of  llie  rclalioii  niilch 
tlic  Suites  iinil  tlie  goiierul  (^overnmout 


Ijear  to  encli  other.  Fort  Hill,  .liii, 
21;,  18;il.  (Calhoun's  Speoclies,  1st  ed., 
18i;t,  i>.  28. 


^;j;;.] 


NTLUFICATION. 


127 


*J. 


(■i)-oslat(!  the  right  to  judge  of  its  powers,  with  a  negative  or  veto  on  the 
iipts  of  the  otliers,  in  order  to  protect  against  encroachments  tlie 
iiitcrtsts  It  particularly  represents :  a  principle  which  all  of  our  Con- 
stitutions recognize  in  the  distribution  of  power  among  their  respective 
(k'pavtnients,  as  essential  to  maintain  the  independence  of  each,  but 
wiiich,  to  all  who  will  duly  reflect  on  the  subject,  must  appear  far  more 
essential,  for  the  same  object,  in  that  great  and  fundamental  distribu- 
tion of  powers  between  the  General  and  State  Governments.  So 
I'SKontial  is  the  principle,  that  to  withhold  the  right  from  either,  where 
liie  sovereign  i)ower  is  divided,  is,  in  fact,  to  annul  the  difision  ilnelf, 
and  lo  mnsiilidate  in  the  one  left  in  the  exclusive  possession  of  the  right 
!(//  powers  of  government;  for  it  is  not  possible  to  distinguish,  jjracli- 
cally,  between  a  government  having  all  power,  and  one  having  the 
right  to  take  what  poworb  it  pleases.  Nor  does  it  in  the  least  vary  the 
principle,  whether  the  distribution  of  power  between  co-estates,  as  in 
Enghnd,  or  between  distinctly  organized  bi;  connected  governments, 
as  with  us.  The  reason  is  the  same  in  both  cases,  while  the  necessity 
is  greater  in  our  ease,  as  the  danger  of  conflict  is  greater  where  the 
interests  of  a  society  are  divided  geographically  than  in  any  othei-,  as 
lias  already  been  shown."  " 

"  So  far  from  extreme  danger,  1  hold  that  there  never  was  a  free  state 
in  which  this  great  conservative  principle,  indispensable  to  all,  was 
ever  so  safely  lodged.  In  others,  wlien  the  co-estates  representing  the 
ilissiinilar  and  conflicting  interests  of  the  comnuinity  came  into  contact, 
this  only  alternative  was  compromise,  submission,  or  force.  Not  so  in 
ours.  Sliould  the  General  Government  and  a  state  come  into  conflict, 
we  have  a  higher  remedy  :  the  power  which  called  the  General  Govern- 
ment into  existence,  which  gave  it  all  its  authority,  and  can  enlarge, 
contract,  or  abolish  its  powers  at  its  pleasure,  may  be  invoked.  The 
fttati'H  themselves  may  be  appealed  to,  three-fourths  of  which,  in  fact, 
form  a  power,  whose  decrees  arc  the  Constitution  itself,  and  whose 
voice  can  silence  all  discontent.  The  utmost  extent,  then,  of  the  power 
is,  1  I  ;i  state  acting  in  its  sovereign  capacity,  as  one  of  the  parties  to 
the  constitutional  compact,  may  conipel  the  government,  created  by 
tliat  coni|)act,  to  sulmiit  a  question  touching  its  infraction  to  the  parties 
who  created  it;  to  avoid  the  supjiosed  .langers  of  whicii,  it  is  proposed 
to  resort  to  the  novel,  the  hazardous,  and,  I  must  add,  fatal  project, 
of  giving  to  tiie  General  Government  tlie  sole  and  flnal  right  of  intcr- 


^  Mr.  Callioun's  (iddroHS,  BtntliiK  hiH  .'acli  (itlier.  Fort  Hill,  July  20,  1831. 
Dpiiiion  of  (111' relation  whU'li  till' States  Calhoun's  Bpeoolios,  1st  I'll.,  Ibl3,  pp. 
auiJ  llio  fjfouoral  government  boar  to      30-31. 


128 


NATURE   OF  THE  CONSTITUTION. 


[chap.  II. 


prctin*;  the  Constitution,  thereby  reversing  the  whole  system,  inakinsr 
that  instnimcMit  the  creature  of  lis  will  insteau  of  a  rule  of  action 
impressed  on  it  at  its  creation,  and  annihilating,  in  fact,  the  authority 
whicli  imposed  it,  and  from  which  the  government  itself  derives  its 
existence.  That  such  would  be  the  result,  were  the  right  in  question 
^•ostcd  in  the  legislative  or  executive  branch  of  the  government,  is 
inceded  by  all.  No  one  has  been  so  hardy  as  to  assert  that  Congress 
1'  the  President  ought  to  have  the  right,  or  deny  that,  if  vested  finally 
iind  exclusively  in  either,  the  eonseciuonces  which  I  have  stated  would 
iiocessarily  follow;  but  its  advocates  have  been  reconciled  to  the 
doctriiii',  on  tlie  supposition  that  there  is  one  department  of  the  General 
(ioveriimmt  wiiioh,  from  its  peculiar  organization,  affords  an  indepen- 
dent tribunal  through  which  the  government  may  exercise  the  high 
authority  which  is  the  subject  of  consideration,  with  perfect  safety  to 
all. 

"  1  yield,  I  trust,  to  few  in  my  attachment  to  the  judiciary  depart- 
ment. I  am  fully  sensible  of  its  importance,  and  would  maintain  it  to 
the  fullest  extent  in  its  constitutional  powers  and  independence ;  but  it 
is  impossible  for  me  to  believe  that  it  was  ever  intended  by  the  Consti- 
tution that  it  should  exercise  the  power  in  question,  or  that  it  is 
competent  to  do  so;  and,  if  it  werg,  that  it  would  be  a  safe  depositary 
of  the  power. 

"  Its  powers  are  judicial,  and  not  political,  and  are  expressly 
confined  by  tlie  Constitution  '  to  all  cuaas  in  law  and  equity  arising 
under  tiiis  Constitution,  the  laws  of  the  United  States,  and  the  treaties 
made,  or  which  shall  be  ma<U',  \indcr  its  authority'  ;  and  which  I  have 
high  authority  iu  asserting  excludes  political  (juestious,  and  comprehends 
tlujse  only  whore  there  are  parties  amenable  to  the  process  of  the 
court."  Nor  is  its  incompetency  less  clear  than  its  want  of  constitu- 
tional authority.  There  may  be  many,  and  the  most  dangerous  in- 
fractions on  the  jiart  of  Congress,  of  which,  it  is  conceded  by  all,  the 
court,  as  a  judicial  tribunal,  cannot,  from  its  nature,  take  cognizance. 
'I'he  tariff  itself  is  a  strong  case  in  point;  and  the  reason  applies 
equally  to  all  others  where  (JniKiress  perverts  a  power  from  an  olijed 
intended  to  one  not  intended,  the  mont  insidioun  and  davgerons  of  all  the 
infractions ;  and  which  ma;/  be  extended  to  all  of  its  powers,  more 
esperiitihi  to  the  luxliirj  and  appropridtinr/.  But  supposing  it  competent 
to  take  cognizance  of  all  infractions  of  every  description,  the  insuper- 


3  ..  I  i-cf,.).  to  the  authority  of  Cliief 
.Tii:-tic.'  Marshall,  in  the  cuse  of  Joiia- 
thun  Uobbins.     I  have  not  been  ablo 


to  rrfiT  to  tlio  speech,  and  speak  fi"om 
luoniory."    Calhoun's  note. 


^  33.] 


Nri.LIFirATION. 


129 


nb'.f  objpclioii  still  remains,  tluit  it  would  not  be  a  safe  tribunal  to 
exercise  the  power  in  questiou. 

"It  is  a  universal  and  fundamental  political  principle,  that  tlic  power 
111  protect  can  safely  be  confided  only  to  tliose  interested  in  protecting, 
or  tlioir  responsible  agents  —  a  maxim  not  less  true  iu  private  than  in 
])iil)iic  affairs.  The  danger  in  our  system  is,  that  the  General  (lovern- 
iiient,  which  represents  the  interests  of  the  whole,  nuiy  encroach  on  the 
states,  which  represent  the  peculiar  and  local  interests,  or  that  tlie 
latter  may  encroach  on  the  former. 

"  In  examining  this  point,  we  ought  not  to  forget  that  the  govern- 
ment, through  all  its  departments,  judicial  as  well  as  others,  is  adminis- 
tered by  delegated  and  responsible  agents  ;  and  that  ihc poicer  which  reulhj 
i-niitmh,  ultimately,  all  the  movemfjitK,  is  not  in  the  atjents,  hut  those  who 
ili'ii  or  appoint  them.  To  understand,  then,  its  real  character,  and 
what  would  be  the  action  of  the  system  in  any  supposable  case,  we 
iiHist  raise  our  view,  from  the  mere  agents  to  this  high  controlling  power, 
which  finally  impels  every  movement  of  the  machine.  By  doing  so, 
we  sliall  find  all  under  the  control  of  the  will  of  a  majority,  compounded 
of  tlie  majority  of  the  states,  taken  as  corporate  bodies,  and  the 
majority  of  the  people  of  the  states,  estimated  in  federal  numbers. 
'I'lieae,  united,  constitute  the  real  and  final  power  which  impels  and 
directs  the  movements  of  the  General  Government.  The  majority  of 
tlie  states  elect  the  majority  of  the  Senate ;  of  the  people  of  the  states, 
that  of  the  House  of  Representatives;  the  two  united,  the  President; 
and  tlie  President  and  a  majority  of  the  Senate  appoint  the  judges ;  a 
majority  of  whom,  and  a  majority  of  the  Senate  and  house,  with  the 
I'lesiilent,  really  exercise  all  the  powers  of  the  government,  with  the 
exception  of  the  cases  where  the  Constitution  requires  a  greater  number 
tli:Mi  a  majority.  The  judges  are,  in  fact,  as  truly  the  judicial  repre- 
sent ulives  of  this  united  majority,  as  the  majority  of  Congress  itself,  or 
llii^  i'rosident,  is  its  legislative  or  exec  tive  representative;  and  to 
conliile  the  power  to  the  judiciary  to  detern.ine  finally  and  conclusivelj- 
wli:it  powers  are  delegated  and  what  reserved,  would  be,  iu  realitj',  to 
eonlide  it  to  the  majority,  whose  agents  they  are,  and  by  whom  they  can 
he  controlled,  in  various  ways ;  and,  of  course,  to  subject  (against  the 
funilamental  principle  of  our  system  and  all  sound  political  reasoning) 
tlie  reserved  powers  of  the  states,  with  all  the  local  and  peculiar 
interests  they  were  intended  to  protect,  to  the  will  of  the  very  majority 
airainsl  which  the  protection  was  intended.  Nor  will  the  tenure  by 
which  the  judges  hold  their  office,  however  valuable  the  provision  iu 
many  other  respects,  materially  vary  the  case.     Its  highest   possible 


130 


NATUHE   OF   THE   CONSTITUTION. 


[chap.  ir. 


effect  would  be  to  rcUinl,  niul  not  Jintdbj  to  resist,  the  will  of  ft  domin.'uit 
majorily. 

"  But  it  is  useless  to  multiply  arguments.  Were  it  possible  tliut 
reason  could  settle  a  question  where  the  passions  and  interests  of  meu 
are  concerned,  this  point  would  have  been  long  since  settled  fortver  by 
the  Ptate  of  Virginia.  The  report  of  her  Legislature,  to  which  I  have 
alrei  dy  referred,  has  really,  in  my  opinion,  placed  it  beyond  controversy. 
Spcirking  in  reference  to  this  subject,  it  says :  '  It  has  been  objected ' 
(ti  the  right  of  a  state  to  interpose  for  the  protection  of  her  reserved 
rights)  '  that  the  judicial  authority  is  to  be  regarded  as  the  sole  expositor 
of  the  (.'onstitution.  On  this  objection  it  might  be  observed,  first,  that 
there  may  be  instances  of  usurped  powers  which  the  forma  of  tho  Con- 
stitution could  never  draw  within  the  control  of  the  judicial  department ; 
secondly,  that,  if  the  decision  of  the  judiciary  be  raised  above  tlie 
sovereign  parties  to  the  Constitution,  tlie  decisions  of  the  other  depart- 
ments, not  carried  by  the  forms  of  the  Constitution  before  the  judiciary, 
must  be  equally  authoritative  and  final  with  tlie  decision  of  that  depart- 
ment. Hut  tlie  proper  answer  to  the  objection,  is,  that  tlie  resolution 
of  the  (Jencral  Assembly  relates  to  those  great  and  extraordinary  cases 
in  which  all  the  forms  of  the  Constitution  may  prove  ineffectual  against 
infractions  dangerous  to  the  essential  rights  of  the  parties  to  it.  The 
resolutiou  supposes  that  dangerous  powers,  not  delegated,  may  not  only 
be  usurped  aud  executed  by  the  other  departments,  but  that  the  judicial 
department  may  also  exercise  or  sanction  dangerous  powers,  boyoiul 
the  grant  of  tiie  Constitution,  and,  consequently,  that  the  ultimate  right 
of  the  parties  to  tlie  Constitution  to  judge  whether  the  compact  has  been 
dangerously  violated,  must  extend  to  violations  by  one  delegated 
authority  as  well  as  by  another  —  by  the  judiciary,  us  well  as  by  the 
executive  or  legislative.'  * 

"  Against  these  conclusive  arguments,  as  they  seem  to  mo,  it  is 
objected  that,  if  one  of  the  party  has  the  right  to  judge  of  infractions 
of  the  Constitution,  so  has  the  other ;  and  that,  consequently,  in  cases 
of  contested  powers  between  a  state  and  the  (ieueral  Government,  each 
would  have  a  right  to  maintain  its  opinion,  as  is  the  case  when  sovereign 
powers  differ  in  the  construction  of  treaties  or  compacts,  and  that,  of 
course,  it  wouUl  come  to  be  a  mere  question  of  force.  The  error  is  in 
;  the  assumption  that  the  General  Government  is  a  party  to  the  constitu- 
tional comp.act.  The  states,  as  has  been  shown,  formed  the  compact, 
acting  as  sovereign  and  independent  communities.  The  General  C!ov- 
ernmeiit  is  but  its  creature;  and  though,  in  reality,  a  government,  witii 
*  "  MiKlison's  Report  on  tlie  Virginia  resolutlous."     Calhoun'«  note;. 


:i:l.] 


NrLLiriCATlON. 


l:il 


:ill  tlio  liglitrt  iiiul  autliority  wliicli  l)i'loiig  to  any  other  government, 
wiiliiii  till'  orbit  of  its  powers,  it  is,  nevertiielcss,  a  government  emiinat- 
iii^'  I'loni  !i  foinpact  between  sovereigns,  and  partaitiug,  in  its  nalnrc 
mill  object,  of  the  clianu'ter  of  a  joint  commission,  appointed  to  super- 
intend and  administer  the  interests  in  wliieh  all  are  jointly  concerned, 
but  having,  beyond  its  j)roper  sphere,  no  more  power  than  if  it  did  not 
exist.  To  deny  this  would  be  to  deny  the  most  incontestable  facts  and 
I  he  clearest  conclusions ;  while  to  acknowledge  its  truth  is  to  destroy 
utterly  the  objection  that  the  appeal  would  be  to  force,  in  the  case 
.supposed.  I''or,  if  each  party  has  a  right  to  judge,  then,  under  our 
system  of  governmeut,  the  final  cognizance  of  a  question  of  contested 
jiower  would  be  in  the  states,  and  not  in  the  General  (lovernment.  It 
wnuld  be  the  duty  of  the  latter,  as  in  all  similar  cases  of  a  contest  l)e- 
tni'OTi  one  or  more  of  the  principals,  and  a  joint  commission  or  agency, 
to  refer  the  contest  to  the  principals  themselves.  Such  are  the  plain 
dictates  of  both  reason  and  analogy.  On  no  sound  principle  can  t!ie 
iigents  have  a  right  to  find  cognizance,  as  against  the  principals  much 
less  to  use  force  against  them  to  maintain  their  construction  of  their 
powers.  Such  a  right  would  be  monstrous,  and  has  never,  heretofore, 
been  claimed  in  similar  cases."  ' 

"  How  the  states  are  to  exercise  this  high  power  of  interposition^ 
which  constitutes  so  essential  a  portion  of  t'leir  reserved  rights  that  it 
cannol  he  dekgaU'd  irilhoiU  an  entire  surrcmlt',-  of  their  sorereii/nt;/,  and 
converting  our  system  from  a,  federal  into  a  cohr.olidatcd  government,  is 
a  (picstion  that  the  states  only  are  competent  to  determiuc.  The 
arguments  which  prove  that  they  possess  the  po'ver,  equally  prove  that 
they  are,  in  the  language  of  Jelt'erson,  ^the  riijhlfiil  Judges  <f  the  mude 
and  measure  of  redress.'  But  the  spirit  of  forbearance,  as  well  as  the 
nature  of  the  right  itself,  forbids  a  recourse  to  it,  except  in  cases  of 
dangerous  infractions  of  the  Constitution;  and  then  only  in  the  hist 
resort,  when  all  reasonable  hope  of  relief  from  the  ordinary  action  of 
the  government  has  failed ;  when,  if  the  right  to  interpose  did  not 
exist,  the  alternative  would  be  submission  and  oppression  on  one  side, 
or  resistance  by  force  on  the  other.  That  our  system  should  alTord.  in 
in  such  extreme  cases,  an  intermediate  point  between  these  dire  alter- 
natives, by  which  the  government  may  be  brought  to  a  pause,  and 
thereby  an  interval  obtained  to  compromise  ditTerences,  or,  if  im- 
praetieable,  be  compelled  to  submit  the  question  to  a  constitutional  ad- 


'' Sir.  (.'iilhouri's  address,  Btatiiif?  his  each  <)th<>r.  Fori  Hill,  July  J('>,  ls:U. 
opiiiioiioiiliiTclaUoii  which  Ihi'Stntes  Callioiiu's  Spooehos,  Isl  eil.,  1H13,  pp. 
and  Ww  general  noverunieut  benr  to      31-31. 


182 


NATURK   OK   THK   CONSTITl  TION. 


[CHAV 


justmont,  through  nn  appeal  to  the  states  themselves,  is  an  evidence  of 
its  Iiijrli  wisilom  ;  un  elcnieiit  not,  as  ia  supposed  bj'  some,  of  weakness, 
but  of  str('ii<j;th ;  not  of  anarchy  or  revoliilntion,  hut  of  peace  and 
safety.  I'n  (jcnerul  rcnxjnition  u-onld  of  it.ielf,  in  <i  r/reat  measure,  '.f 
iitit  (iHnr/fitlier,  .iiijierai'ch  the  necennify  of  itK  exerri.ie,  hji  iinj)re.'<sinij  on 
the  movements  nf'the  rjni-ernmetit  that  tnoderathn  n7iil  justice  so  essenliul 
to  hannonij  and  peace,  in  a  countr;/  of  such  cast  extent  and  dirersiti/  of 
interest!^  as  lurs ;  and  would,  if  controversy  siiould  come,  turn  the  re- 
sentment of  the  ag|T;rievcd  from  the  system  to  those  who  had  abused  its 
powers  (a  point  all  important),  and  cause  them  to  seek  redress,  not  in 
revolution  or  overthrow,  hut  in  reformation.  Tt  is,  in  fact,  properly 
understood,  a  substitute  where  the  alternative  would  be  force,  tending  to 
prevent,  and,  if  that  fails,  to  correct  penceahhj  the  ahemdions  to  which 
nil  si/stems  are  liable,  and  which,  if  permitted  to  accumulate  without 
correction,  must  finally  end  in  a  general  catastrophe."  ' 

"  I  next  propose  to  consider  the  i)ractical  effect  of  the  exercise  of 
this  high  and  important  right  —  which,  as  the  great  conservative  principle 
of  our  system,  is  known  under  the  various  names  of  nullification,  inter- 
position, and  state  veto — in  reference  to  its  operation  viewed  under 
different  aspects  :  nullification,  as  declaring  null  an  unconstitutional 
act  of  tiie  General  Government,  as  far  as  the  state  is  concerned ; 
interposition,  as  throwing  the  shield  of  protection  between  the  citizens 
of  a  state  and  the  encroachments  of  the  (iovernment;  and  veto,  as 
arresting  or  inhibiting  its  unauthorized  acts  within  the  limits  of  the 
state. 

"  The  practical  effect,  if  the  right  was  fidly  recognized,  would  he 
plain  and  simple,  and  has  already,  in  a  great  measure,  been  anticipated. 
If  the  state  has  a  right,  there  nuist,  of  necessity,  be  a  corresponding 
obligation  on  the  part  of  the  General  Government  to  acquiesce  in  its 
exercise;  and,  of  course,  it  would  be  its  duty  to  abandon  the  jjower, 
at  least  as  far  as  the  state  is  concerned,  to  compromise  the  dilllculty,  or 
apply  to  the  states  themselves,  according  to  the  form  prescribed  in  the 
(Constitution,  to  obtain  the  power  by  a  grant.  If  granted,  acquiescence, 
then,  would  be  a  duty  on  the  part  of  the  state  ;  and,  in  that  event,  the 
contest  would  terminate  in  converting  a  doubtful  constructive  power 
into  one  positively  granted  ;  but,  should  it  not  be  granted,  no  alterna- 
tive would  remain  for  the  General  Government  but  a  compromise  or  its 
permanent  abandonment.     In  either  event,  the  controversy  would  he 


"  Mr.  Calhoun's  aildress,  stating  his 
opinion  of  the  reltttioa  which  the  States 
and  the  General  Government  boar  to 


each  olher.  Fort  Hill,  July  26,  1H.31. 
Calhoun's  Speeches,  1st  od.,  1843,  pp. 
34-35. 


;i3.] 


NULLIFICATION. 


1  m 


cliiseil  and  the  Constitution  fixed :  a  result  of  the  utmost  importanue 
to  tiie  steady  operation  of  tlie  government  and  tbe  stability  of  the 
nvstem,  mid  whifh  can  never  be  attained,  under  its  present  operation, 
without  the  recognition  of  tiie  right,  as  experience  has  shown. 

"From  the  adoption  of  the  Constitution,  we  have  had  but  one 
cdiitinued  agitation  of  constitutional  questions  embracing  some  of  the 
most  iiiii)ortant  powers  exercised  by  the  government;  and  yet,  in  spite 
of  all  the  ability  and  force  of  argument  displayed  in  the  various  dis- 
cussions, backed  by  the  high  authority  claimed  for  the  Supreme  Court 
to  adjust  such  controversies,  not  a  single  constitutional  question,  of  a 
political  character,  which  has  ever  been  agitated  during  this  long  period, 
iins  been  settled  in  the  public  opinion,  except  that  of  the  unconslitu- 
tiouality  of  the  Alien  and  Sedition  Law ;  and,  what  is  remarlcable,  that 
WHS  settled  uijahist  the  decision  of  the  Siiiireme  Court.'  The  tendency 
is  to  increase,  and  not  diminish,  this  conflict  for  power.  Xew  questions 
are  yearly  added  without  diminishing  the  old  ;  wiiile  the  contest  becomes 
more  obstinate  as  the  list  increases,  and,  what  is  highly  ominous    more 


■  (Tpon  this  stat(Miii>nt  Juil(;;i!  Story 
ri'r:.iiiki'(l :  "Now,  in  tlii'  first  jiiuui', 
the  coiislitutioniilily  of  the  Alioii  and 
Sidition  laws  ncvor  came  before  tlio 
Supremo  Court  for  dcoisiou,  and  eon- 
seiiuentiy  never  was  decided  by  that 
lourt.  Ill  the  next  pla(^e,  what  is 
imant  by  j)!(b?i(!  opinion  de<'idinK  coi:- 
slilulional  (iiiestioiis  ?  Wliat  pul)lic 
()|iiiilon  ?  Wlien!  and  at  wliiil  time 
delivered  ?  It  is  notorious  tlmt  tome 
o(  llic  nblest  stati'smen  and  jurists  of 
Ameriea,  a;  tlie  time  of  tlie  passage 
(if  tliese  aets,  and  ever  sinee,  have 
laainlainod  the  constitutionality  of 
tlii'se  laws.  They  were  upheld,  as 
i-on^ititutional,  by  some  of  the  most 
iiitellig(>nt  and  able  Slate  legislatures 
in  the  Union  in  deliberate  resolutions 
allirming  their  eonstitutiouaiil}'.  Nay, 
ni(ii-e  ;  it  may  be  alTlrmed  that,  at  the 
lime  when  the  controversy  engaged 
llie  public  mind  most  earnestly  upon 
tlie  subject,  there  was  (to  say  the 
li':ist  of  it)  as  gre.it  a  W(!ight  of  judi- 
lial  and  professional  talent,  learning, 
and  iiatriotisni  (Milisted  in  the. ..■  favor, 
us  there  ever  has  been  against  them. 


If  liy  l)eing  settled  by  jiublie  oiiinion 
is  meant  that  all  the  people  of  America 
were  united  in  one  opinion  on  the  sub- 
ject, the  correctness  of  the  statement 
cannot  bo  admitted,  though  its  sin- 
cerity will  not  be  <iueslioued.  It  la 
on<!  thing  to  believe  a  doctrine  univer- 
sally admitted,  beiviuse  we  ourselves 
think  it  clear,  and  i|uit(^  another  thing 
to  establish  the  fact.  The  Sedition 
and  Alien  laws  were  generally  deemed 
inexpedient,  and  tlu'reforeany  allusion 
to  them  now  rarely  oci'urs,  except  iu 
political  discussions,  wIkmi  th(>y  are 
introiluced  to  add  odium  to  tln^  party 
by  which  they  were  adopted.  But  the 
most  serious  doubts  may  bo  enter- 
tained wliethei-,  even  in  the  jires- 
ent  day,  a  majority  of  constitutional 
lawyers,  or  of  judicial  opinions,  do- 
liljerateiy  hold  theui  to  be  unconstitu- 
tional." Story  on  the  Constitution, 
.Ith  ed.,  §  1271,  pp.  180-181,  note. 
Uiuler  the  hito  decisions  of  the  Su- 
premo Court  tiie  Aii(Mi  law  would  cer- 
tainly and  the  Sedition  law  lu-oli.ibly 
bo  held  constitutional.  Sec  Foug  Yuo 
Ting  V.  V.  S.,  lia  U.  B.  698. 


184 


NATl'UE    OF   TIIK    COXSTITUTION. 


[CIIAP.  II. 


spctional.  It  is  impossible  tliat  tlie  goveniineut  can  Inst  iin<lor  lliis 
increasing  diversity  of  opinion,  and  |;rowing  uncertainty  as  to  its  power 
in  relation  to  the  most  important  sulijccts  of  leifislation  ;  and  equally  so, 
that  this  dangerous  state  can  terminate  without  a  power  somewhere  !(i 
compel,  in  effect,  the  government  to  abandon  doubtful  constrtictivi' 
jiowers,  or  to  convert  tiiem  into  positive  grants  by  an  amendment  of  the 
C'onstituticm ;  in  a  word,  to  substitute  the  positive  grants  of  the  partien 
themselves  for  the  constructive  powers  interpolated  by  the  agents. 
Nothing  short  of  this,  iu  a  system  constructed  as  ours  is,  with  a  doulih; 
set  of  agents,  one  for  local  and  the  other  for  general  purposes,  can 
ever  t':iini.iate  the  conflict  for  power  or  give  uniformity  and  stability  to 
its  iction, 

"Such  wjuld  be  the  practical  and  ha])py  operation  were  the  riijhi 
'/ficnynizcd ;  but  the  case  is  far  otherwise;  and  as  the  right  is  not  onlv 
denied,  but  violently  opposed,  the  (leneral  Government,  so  far  from 
acquiescinj^  in  its  exercise,  and  abandoning  the  power,  as  it  ought,  may 
endeavour,  by  all  the  means  within  its  command,  to  enforce  its  con- 
strue'ion  against  that  of  the  state.  !.,  is  under  this  aspect  of  thi' 
que'.tion  that  I  now  propose  to  consider  the  practical  effect  of  the  exer- 
cise of  the  right,  with  the  view  to  determine  which  of  the  two,  the  stale 
or  the  tieneral  Government,  mu.st  prevail  in  the  coullict ;  whicli  com])eis 
me  to  revert  to  some  of  the  grounds  already  estrMished. 

"  I  have  already  shown  that  the  declaration  of  nullification  would  lie 
obligatory  on  the  citizens  of  the  state,  as  much  so,  in  fact,  as  its  decla- 
ration ratifying  the  Constitution,  resting,  as  it  does,  on  the  same  basi,s. 
It  would  I')  Ihi'm  be  the  highest  possible  evidence  that  the  power  con- 
tested was  not  granted,  and,  of  course,  tliat  the  act  of  the  General 
Government  was  unconstitutional.  They  would  be  bound  iu  all  tlie 
relations  of  life,  private  and  political,  to  res|)ect  and  obey  it;  and, 
wiieu  e;dlcd  upon  as  jurymen,  to  render  their  verdict  accordingly,  or, 
ns  judges,  to  pronounce  judgment  in  conformity  to  it.  The  right  of 
jury  trial  is  secured  by  the  Constitution  (thanks  to  the  jealous  spirit  of 
liberty,  doubly  secured  and  fortified)  ;  and,  with  this  inestimal)lc  right  — 
inestimable  not  only  as  an  essential  portion  of  the  judicial  tribunals  of 
the  country,  but  infinitely  more  so,  considered  as  a  popular,  and  si  ill 
more,  a  local  representation,  in  that  department  of  the  government, 
which,  without  it,  would  be  the  farthest  removed  from  tlie  control  of 
the  people,  and  a  fit  instrument  to  sap  the  foundation  of  the  system  — 
■with,  I  repeat,  this  inestimable  right,  it  would  be  impossible  for  Ilie 
General  Government,  within  the  limits  of  the  state,  to  execute,  Icfjnlly, 
the  act  nullified,  or  any  other  passed  with  a  view  to  enforce  it ;  while, 


;;;!.] 


NULLIFICATION. 


v.'.r, 


iiri  till'  other  hand,  the  state  would  be  able  to  enforce,  ler/itUi/  dinl i>e(iri.'- 
itl.hj,  its  declaration  of  nullification.  Sustained  by  its  court  and  juries, 
it  would  calmly  and  quietly,  but  successfully,  meet  every  elTort  of  the 
(ii'iu'r:d  Ciovernment  to  enforce  its  claim  of  power.  The  result  would 
111-  inevitable.  Hefore  the  judicial  tribunal  of  the  country,  the  state 
must  prevail,  unless,  indeed,  jury  trial  could  be  eluded  by  the  reflne- 
iiient  of  the  court,  or  by  some  other  device;  which,  how  'er,  guarded 
iis  il  is  by  liie  ramparts  of  the  Constitution,  would,  I  hold,  be  impossible. 
'I'lic  attempt  to  elude,  should  it  be  made,  would  itself  be  unconstitu- 
tional ;  and,  in  turn,  would  be  annulled  by  the  sovercifin  voice  of  the 
s-tiite.  Nor  would  the  right  of  appeal  to  the  Supreme  Court,  under  the 
jiiilieiary  act,  avail  the  (ieneral  (lovernment.  Tf  taken,  it  would  but 
end  in  a  new  trial,  and  that  in  another  verdict  against  the  government; 
luit  whether  it  may  be  taken,  would  be  optional  with  the  state.  The 
court  itself  has  decided  that  a  copy  of  the  record  is  re(iuisite  to  review 
a  judgment  of  a  state  court,  and,  if  necessary,  the  state  would  take  the 
l)n'eaution  to  prevent,  by  proper  enactments,  any  means  of  obtaining  a 
copy.  15ut  if  obtained,  what  would  it  avail  against  the  execution  of 
the  penal  enactments  of  the  state,  intended  to  enforce  the  declaration 
of  itullilication?  The  judgment  of  the  state  court  would  be  pronounced 
!ind  executed  before  the  possibility  of  a  reversal,  and  executed,  too, 
without  rcs])onsibility  incurred  by  anyone.  Beaten  before  the  courts, 
tiie  (ieneral  (Joverument  would  be  compelled  to  abandon  its  unconsti- 
tutional pretensions,  or  resort  to  force;  a  resort,  the  dilllculty  (I  was 
aliout  to  say,  the  impossibility)  of  which  would  very  soon  fully  manifest 
itself,  slioidd  folly  or  madness  ever  make  the  attempt. 

"  In  considering  this  aspect  of  the  controversy,  I  pass  over  the  fact 
tliat  the  General  Ciovernment  has  no  right  to  resort  to  force  against  a 
state  —  to  coerce  a  sovereign  member  of  tlie  Union  —  which  I  trust,  1 
have  established  beyond  all  possible  doubt.  Let  it,  however,  be  de- 
termined to  use  force,  and  the  difliculty  would  be  insurmountable,  un- 
less, inileed,  it  be  .also  determined  to  set  aside  the  Constitution,  and  to 
sulivrrt  the  system  of  its  foundations.  Against  whom  wouhl  it  be  ap- 
plied? Congress  has,  it  is  true,  the  right  to  call  forth  the  militia  'to 
execute  the  laws  and  suppress  insurrection ' ;  but  there  would  be  no  law 
resisted,  unless,  indeed,  it  be  called  resistance  for  tiie  juries  to  refuse 
to  (ind,  and  the  courts  to  render  judgment,  in  conformity  to  the  wishes 
of  tlie  (Ieneral  Government;  no  insurrection  to  suppress;  no  armed 
force  to  reduce  ;  not  a  sword  unsheathed  ;  not  a  bayonet  raised  ;  none, 
iilisoiutely  none,  on  wliom  force  could  be  used,  except  it  be  on  the  un- 
armed citizens  engaged  peaceably  and  quietly  in  their  daily  occupa- 
tions. 


l:!»i 


NATUBK   <)1'    TIIK    CONSTITtTION. 


[CHAI'.  II. 


"  Xo  one  would  lie  (iuilly  of  ticnson  (' lovyinj;  wiir  ngiiiiiat  the 
United  Stiitos,  mlluTiii};  to  tlicii' eiieiiiios,  ;iiviiijr  tlieni  iiid  auci  comfort'), 
or  any  other  crime  made  peiml  liy  tlie  C'oustitutioii  or  tlie  laws  of  the 
United  States.  To  Bupposc  that  force  could  be  called  in,  implies, 
indeed,  a  jireat  miKtake,  both  as  to  the  nature  of  our  government  and 
that  of  the  controversy.  It  would  be  a  legal  and  constitutional  conti'st 
—  a  conllict  of  moral,  and  not  jihysical  force  —  a  trial  of  constitutioiml, 
not  military  power,  to  be  decided  before  the  judicial  tribunals  of  the 
country,  and  not  on  the  field  of  battle.  In  such  a  contest,  there  would 
be  no  object  for  force,  but  those  peaceful  tribunals  —  nothing  on  which 
it  could  be  employed,  but  in  putting  down  courts  and  juries,  and 
preventing  the  execution  of  judicial  jjroecss.  heave  these  untouched, 
and  all  the  militia  that  couKl  be  called  forth,  backed  by  a  regular  force 
of  ten  times  the  number  of  our  siiiali,  but  gallant  and  jiatric  'iriny, 
could  have  not  the  slightest  effect  on  the  result  of  the  contri  •  but 

subvert  these  by  an  armed  body,  and  you  subvert  the  very  tiou 

of  this  our  free,  constitutional,  and  legal  system  of  government,  and 
rear  in  its  place  a  military  despotism. 

"  Feeling  the  force  of  these  dilliculties,  it  is  proposed,  with  the  view. 
I  suppose,  of  disendjarrassing  tlie  operation,  as  unich  as  possible,  of 
the  troublesome  interference  of  coiu'ts  and  juries,  to  change  the  scene 
of  coercion  from  land  to  water;  as  if  the  government  could  have  one 
particle  more  right  t(j  coerce  a  state  by  water  than  by  land  ;  imt,  unless  I 
am  greatly  deceived,  the  didlcultv  on  that  element  will  not  be  much 
less  than  on  the  other.  I'lic  jiiiy  ii....,  east  the  local  jury  trial  (the 
trial  by  the  vicin";^"}  '~''>yi  indeed,  be  evaded  there,  but  in  its  place 
other,  and  not  much  less  formidable,  obstacles  must  be  cucounti'ied. 
There  can  be  but  two  modes  of  coercion  resorted  to  by  water-blockade 
and  abolition  of  the  ports  of  entry  of  the  state,  accompanied  by  penal 
enactments,  authorizing  seizures  for  entering  the  waters  of  tlie  state. 
If  the  former  be  attempted,  there  will  be  other  parties  besides  the 
General  (iovernment  and  the  State.  IJhjckade  is  a  belligerent  right; 
it  presupposes  a  state  of  war,  and  unless  there  be  war  (war  in  due 
form,  as  prescribed  by  the  Constitution)  the  order  for  blockade  would 
not  be  respected  by  other  nations  or  their  subjects.  Their  vessels 
would  proceed  directly  for  the  blockaded  port,  with  certain  prospects 
of  gain;  if  seized  under  the  order  of  blockade,  through  tlie  claim  of 
indemnity  against  the  (leneral  Government;  and,  if  not,  by  profitable 
market,  without  the  exaction  of  duties. 

"The  other  mode,  the  abolition  of  the  ports  of  entry  of  the  state, 
would  also  have  its  difllculties.     The  Constitution  provides  that  '  no 


§=>•'•] 


NtlLUFICATION. 


i:n 


|pivfi'ri':n'e  Hhnll  bo  given  by  nny  rcgulnt'uin  of  roiniiicrct'  or  rcvi'iiuc  Id 
tlir  jioris  of  one  utate  ovt-r  lliosc  of  luiotlii'r;  nor  hIiuII  vi'Shi'Is  bound  1<> 
or  from  one  Btiit*>  lie  obli;?('il  to  t'litor,  cli'ar,  or  piiy  (bitirs  in  aiiotlicr: ' 
jnovisionrt  too  i-lcnr  to  bu  eliideil  vwn  liy  tlio  force  of  tlio  coiistniction. 
'i'liiii'  will  Ijc  iiiiollii'r  (lilllciilty.  If  seizures  be  made  in  i)orl,  or  witliiii 
till'  distance  aHsigncd  by  tbc  laws  uf  natioim  aa  the  liuutM  of  a  state,  tlio 
trial  must  bo  in  tho  state,  with  all  the  cnibarrassmentH  of  its  courts 
iiiid  juries ;  while  bi'yoml  the  ports  and  the  distance  to  whieh  I  have 
iifcrred,  it  would  be  dilUcult  to  point  out  any  principle  by  whieh  a 
foreign  vessel,  at  least,  could  be  Koi^cd,  except  as  an  incident  to  the 
liilht  of  l)lockado,  and,  of  course  with  all  llie  dilllculties  belonging  to 
tluit  mode  of  coercion, 

"  Uut  there  yet  remains  another,  and,  1  doubt  not,  insuperable 
hiirrier,  to  be  found  in  tho  judicial  tribunals  of  the  Union,  against  all 
tlie  scUemes  of  introducing  force,  whether  by  hind  or  water.  Though  1 
cannot  concur  in  the  opinion  of  those  who  regard  tiie  Supreme  Court  as 
the  mediator  appointed  by  the  Constitution  between  the  states  and  the 
(icneral  Government;  and  though  I  cannot  doubt  there  is  a  uatnnd 
bias  on  its  part  towards  the  ])ower8  of  the  latter,  yet  I  must  greatly 
lower  my  opinion  of  that  high  and  important  triljunal  for  intelligeni'o, 
justice,  and  attachment  to  the  Constitution,  and  particularly  of  tliat 
pure  and  ujjright  magistrate  who  has  so  long,  and  with  such  distin- 
guislu'd  honors  to  himself  and  the  Union,  presided  over  its  deliberations, 
with  all  the  weight  that  belongs  to  an  intellect  of  the  first  order,  united 
with  the  most  spotless  integrity,  to  believe,  for  a  moment,  that  an 
attempt  so  plaiidy  and  manifestly  inicoustitutionid  as  a  resort  to  force 
would  bo  in  such  a  contest,  could  bo  sustained  by  the  sanction  of  its 
authority.  In  whatever  form  force  may  be  used,  it  must  pres<'iit 
((uestions  for  legal  adjudication.  If  in  tlie  sliape  of  blockade,  the 
vessels  seized  under  it  must  be  condemned,  and  thus  would  be  pre- 
sented tlie  question  of  prize  or  no  prize,  and,  with  it,  the  legality  of 
the  tiloekade ;  if  in  that  of  a  repeal  of  the  acts  esl  blisliing  ports  of 
entries  in  the  state,  the  legality  of  the  seizure  must  be  determincil, 
and  that  would  bring  up  the  question  of  the  unconstitutionalitj'  of 
giving  a  preference  to  the  ports  of  one  state  over  th(we  of  another ; 
and  so,  if  we  jiass  from  water  to  land,  we  will  find  evciy  attempt  there 
to  substitute  force  for  law  must,  in  like  manner,  come  under  the  review 
of  the  courts  of  the  Union;  and  the  unconstitutionality  would  be  so 
glaring,  that  the  executive  and  legislative  departments,  in  their  attempt 
to  coerce,  should  either  make  an  attempt  so  lawless  and  desperate, 
would  be  without  the  support  of  the  judicial  department.     I  will  not 


138 


NATl'RK    OK   Till':   CONSTITrTION. 


[chap.  II. 


pursue  tlic  question  farther,  as  I  hold  it  pcrfectlj'  clear  tiiut,  so  ;oiig  aa 
a  state  ivlains  its  federal  relations ;  bo  long,  in  a  word,  as  it  continue.s  u 
member  of  tiie  I'nion,  the  contest  between  it  and  the  General  Govern- 
ment must  be  before  the  courts  and  the  juries ;  and  every  attempt,  in 
whatever  form,  -whether  by  land  or  water,  tp  substitute  force  iis  tlic 
arbiter  ia  their  place,  must  fail.  The  unconstitutionality  of  the  attempt 
would  be  HO  open  and  palpable,  that  it  would  be  impossible  to  sustain  it. 

' '  Tiiere  is,  indeed,  one  view,  and  one  only,  of  the  contest  in  whieli 
force  could  be  employed,  but  that  view,  as  between  the  parties,  would 
Hupersede  the  Constitution  itself :  the  nullification  is  secession,  and 
would,  consequently,  place  the  state,  as  to  the  others,  in  the  relation  of 
a  foreign  slate.  Such,  clearly,  would  be  the  effect  of  secession  ;  but  it 
is  equally  clear  that  it  would  place  the  state  beyond  the  pale  of  all  her 
federal  relations,  and,  thereby,  all  control  on  the  part  of  the  other  states 
over  her.  She  would  stand  to  them  p'niply  in  the  relation  of  a  foreign 
state,  divested  of  all  federal  connexion,  and  having  none  other  between 
them  but  those  belonging  to  t  lie  laws  of  nations.  Standing  thus  towards 
one  aTiother,  force  might,  .ini  eed,  be  employed  against  a  state,  but  it 
must  be  a  belligerent  force,  preceded  by  a  declaration  of  war,  and 
carried  on  with  all  its  formalities.  Such  would  be  the  certain  effect  of 
secession ;  and  if  nullification  be  accession  —  if  it  be  but  a  different 
name  for  the  same  thing —  such,  >,  must  be  its  effect;  which  presents 
the  highly  important  question.  Are  thej',  in  fact,  the  same?  on  tlio  de- 
cision of  which  di'i>cnds  the  question  whether  it  be  a  peaceable  and  cin- 
MitutUmid  remedy,  that  may  be  exercised  without  terminatuHi  the 
fciJend  relations  of  the  state  or  not.  am  aware  that  there  is  a  con- 
sidenible  and  respectable  portion  of  our  state,  with  a  very  large  portion 
of  the  I'nioii,  constituting,  in  fact,  a  great  majority,  who  are  of  the 
opinion  that  they  are  the  same  thing,  differing  only  in  name,  and  who, 
under  that  impression,  denounce  it  as  the  most  dangerous  of  all 
doctrines;  and  yet,  so  far  from  being  the  same,  they  are,  unless,  in- 
deed, 1  am  greatly  deceived,  not  only  perfectly  distinguishable,  I'ut 
totally  dissimilar  in  their  nature,  their  object,  and  effect;  and  that,  so 
far  from  deserving  the  denunciation,  so  properly  belonging  to  the  act 
with  which  it  is  confounded,  it  is,  in  truth,  the  highest  and  moot  precious 
of  all  the  rights  of  the  states,  and  essential  to  preserve  that  very  Union, 
for  the  supposed  effect  of  destroying  which  it  is  so  bitterly  anathema- 
tized. 

' '  I  shall  now  proceed  to  make  good  my  assertion  of  their  total  din- 
.limilaril;/.''  First,  they  are  wholly  dissimilar  in  their  nature.  One  Ims 
'  Tlio  ilulicH  are  iu  tlm  oHgliiuI. 


V^o.] 


NULLIKICATION. 


lod 


rl'crence  to  the  parties  themselces,  and  the  other  to  their  agentx. 
^('(•;'ssion  is  a  tcithdrnmil  from  the  Union:  a  separation  from  jiarlifr:,, 
.■111(1,  as  far  as  depends  on  the  member  withdrawing,  a  diasolulion  of  the 
piirtnership.  It  presupposes  an  association :  a  union  of  several  states 
<ir  individuals  for  a  common  object.  Wherever  those  exist,  secession 
m;iy  ;  and  where  they  do  not,  it  cannot.  Nullification  on  the  contrary, 
prcfuijiponex  the  relation  of  princiiud  uud  (tgeiit :  the  one  granting  a 
power  to  be  executed,  the  other,  appointed  by  him  with  authority  to 
execute  it;  and  is  nimphi  a  derlanitioti  on  the  part  of  the  jirincipal, 
inndc  in  due  fonn,  thut  on  (ft  of  the  n/jent  tntnueending  his  pon;er  is 
riill  (uid  void.  It  is  a  right  belonging  escluaively  to  the  relation  be- 
tween princii)al  and  agent,  to  bo  found  irherever  it  crists,  and  in  all  its 
fiinjis,  between  several,  or  an  association  of  principals,  and  their  joint 
agents,  as  well  as  between  a  single  principal  and  his  agent. 

"The  difference  in  their  object  is  no  less  striking  than  in  their  name, 
riie  object  of  secession  is  to  free  the  withdrawing  member  from  the 
iihli'idtion  of  the  association  or  union,  and  is  applicable  to  cases  where 
iie  object  of  the  association  or  union  has  failed,  eilher  by  an  abuse  of 
pcuver  on  the  part  of  its  members,  or  other  causes.  Its  direet  and  im- 
iiit'itiiite  object,  as  it  concerns  (he  n-itlidnvrinij  member,  is  the  ilissolnlion 
(fllic  association  or  union,  as  far  as  it  is  concerned.  On  the  contrary, 
Ilie  object  of  nullification  is  to  confine  the  agent  within  the  limits  of  his 
powers,  by  arresting  his  acts  transcending  them,  not  n-ith  the  view  of 
dislnnjinij  the  delegated  or  trust  poioer,  lint  to  jirescrre  it,  b>j  compAling 
the  diji'id  to  fulfd  the  object  for  tohich  the  agenc;/  or  trust  was  c-eated; 
and  i.i  ajiplicable  only  to  cases  rchere  the  trust  or  lUdcijated  pow;'rs  are 
trans -cudMl  on  the  part  of  the  agent.  Without  the  power  of  secession, 
:ui  association  or  union,  formed  for  the  common  good  of  ad  tlio  mem- 
bi'is,  might  prove  ruinous  to  some,  by  the  abuse  of  power  on  the  part 
of  the  otiiers;  and  without  nullification  the  agent  miglit,  under  colour 
of  construction,  assume  a  power  never  intended  to  be  dolegatod,  or  to 
conver'.  those  delegated  to  objects  never  intended  to  bi  comprehended 
Ml  llie  trust,  to  the  ruin  of  the  principal,  or,  in  case  of  a  joint  agency, 
to  thi'  ruin  of  some  of  the  principals.  Each  has,  t  uis,  its  appropriate 
object,  but  objects  in  their  nature  very  dissimilar;  so  much  so,  that,  in 
case  of  an  association  or  union,  where  the  powers  are  delegated  to  be 
cxecnled  by  an  agent,  the  abuse  of  power,  on  the  part  of  the  agent,  to 
tlie  injury  of  one  or  more  of  the  members,  would  not  justify  secession 
on  their  part.  The  rightful  remedy  in  that  case  would  be  nullification. 
'I'liere  would  be  neither  right  nor  pretext  to  secede  :  not  right,  because 
secession  is  applicable  only  to  the  acts  of  the  members  of  the  associnlioa 


140 


NATUBE   l)F   THK   CONSTITUTION. 


[chap.  ir. 


or  union,  and  not  to  the  act  of  the  agent ;  nor  pretext,  because  there  is 
iiuother,  and  equally  efTicient  remedy,  short  of  the  dissolution  of  the 
iissociatiou  or  uuiou,  which  can  only  be  justified  by  necessity.  Nullificii- 
tioii  may,  indeed,  be  succeeded  by  secession.  In  the  case  stated,  should 
the  other  members  undertake  to  grant  the  power  nullified,  and  should  the 
nature  of  the  power  be  such  as  to  defcut  the  object  of  the  asKocialion  or 
union,  at  least  as  far  as  the  member  nullifying  is  concerned,  it  would 
then  become  an  abuse  of  power  on  the  part  of  the  principals,  and  thus 
present  a  case  where  secession  would  apply  ;  but  in  no  other  could  it  be 
justified,  except  it  be  for  a  failure  of  the  association  or  union  to  effect  the 
object  for  which  it  was  created,  independent  of  any  abuse  of  power. 

"  It  now  remains  to  show  that  their  effect  is  as  dissimilar  as  tlieir 
nature  or  obieet.  Ni.Uificatiou  leaves  the  members  of  the  association 
or  union  in  the  condition  it  found  tliein  —  subject  1o  all  its  burdens, 
and  entitled  to  all  its  !'dvanta<;es,  conipreliending  the  member  mdlifyinix 
as  well  as  the  others —  its  object  being,  not  to  destroy,  but  to  preserve, 
as  has  })een  stated.  It  simply  arrests  the  act  of  the  agent,  as  far  as 
tile  principal  is  concerned,  leaving  in  every  other  respect  the  operation 
of  the  joint  concern  as  before;  secession,  on  the  contrary,  destroys,  as 
far  as  the  wilhdrnwiug  member  is  concerned,  the  association  or  union, 
and  restores  him  to  Ihe  relation  he  occupied  toward  tiie  oilier  niembers 
before  the  existence  of  the  association  or  uiuon.  He  loses  the  benefit, 
but  is  released  from  the  burden  and  contnjl,  and  can  no  longer  be  dealt 
with  by  his  former  associates,  as  on(!  of  its  members.  Siicli  are  really 
the  differences  between  them — ■  dilTerences  so  marked,  that,  instead  of 
bi  ing  identical,  as  supposed,  they  form  a  contrast  in  all  the  aspects 
in  which  they  can  be  regarded.  'I'he  application  of  these  remarks  to 
the  political  association  or  Tnion  of  these  twenty-four  stales  and  the 
(ieueral  (iovenimeiit,  their  joint  agent,  is  too  obvious,  after  what  has 
been  already  sai.l,  to  re(|iiiie  any  additional  illustration,  and  I  will 
dismiss  this  part  ol'  tli<'  subject  with  a  single  additional  rem;'''k.  There 
are  many  who  acknowledge  the  righl  of  a  state  to  secede,  I  deny  its 
right  to  nullify;  and  yet,  it  seems  impossible  to  admit  the  one  without 
admitting  the  other.  They  both  presupjiose  the  same  structure  of  the 
government,  that  is  a  Uiiitm  of  the  states,  as  forming  political 
comnuinities,  tlit;  same  right  on  the  part  of  the  states,  as  nuimbeis  of 
the  I'nion,  to  determine  for  their  citizens  the  extent  of  the  powers 
delegated  and  those!  reserved,  and,  of  course,  to  decide  whether  the 
Constitution  has  or  has  not  been  violated.  The  simple  ditTerence. 
then,  between  those  who  admit  secession  and  deny  nullillcalion,  and 
those  who  admit  both,  is,  that  one  acknowledges  that  the  declaration  ol' 


s  «!'•] 


NULWFICATrON. 


141 


:     N 


i 


a  state  pronouncing  that  the  Constitution  has  been  violated,  and  is, 
tiicri'foro,  null  and  void,  would  he  obligatory  on  her  citizens,  and 
would  arrest  all  the  acts  of  the  government  within  the  limits  of  the 
State;  while  they  deny  that  a  similar  declaration,  made  by  tlie  same 
uiilliority,  and  in  the  same  manner,  that  an  act  of  the  government  has 
transcended  its  powers,  and  that  it  is,  therefore,  null  and  void,  would 
liiive  any  obligation ;  while  the  other  acknowledges  the  obligation  in 
lioth  oases.  The  one  admits  that  the  declaration  of  a  state  assenting 
to  the  Constitution  bound  her  citizens,  and  that  her  declaration  can 
nnl>ind  them;  but  denies  that  a  similar  declaration,  as  to  the  extent 
slie  has,  in  fact,  bound  them,  has  any  obligatory  force  on  them;  while 
llie  other  gives  equal  force  to  the  declaration  in  the  several  cases.  The 
one  (lenies  the  obligation,  where  tlie  object  is  to  jiri'wrrr  tho  Union  in 
llip.  onl'i  way  it  can  be,  by  confining  the  government,  formed  to  execute 
tlic  trust  powers,  strictly  within  thoir  limits,  and  to  tho  objects  for 
wliicli  they  were  delegated,  though  they  give  full  force  where  the 
ol)ject  is  to  (Idntroy  the  Union  itnelf;  while  the  other,  in  giving  equal 
weight  to  both,  prefers  the  one  because  it  prexerrcx,  and  /rjects  the 
other  because  it  destroys;  and  yet  the  former  is  the  Union,  and  the 
latter  the  rlisnnion  party.  And  all  this  strange  distinction  originates, 
as  far  as  1  can  judge,    in   attributing    to    luillid-  i    what    belongs 

exclusively  to  secession.     The  ditliculty  as  to  the  !■  '  -i-ems,  is, 

that  a  state  cannot  be  in  and  out  of  the  Union  at  tiie  .-..uiir  inie.  This 
is,  indeed,  true,  if  applied  to  secession —  the  throwing  off  the  n  it!,  •nly 
of  the  Union  itself.  To  nullify  tiie  Constitution,  if  I  may  bo  purdonoi 
the  solecism,  would,  ir  iced,  be  tantamotint  to  disunion;  and,  as 
appliinl  to  such  an  act,  it  would  be  true  that  a  state  could  not  be  in  and 
out  of  the  Union  at  the  same  time;  but  the  act  would  be  secession. 
Hnt  to  apply  it  to  mdlifieation,  properly  understood,  tho  object  of 
whieli,  instead  of  resisting  or  diminishing  the  powers  of  the  Union,  is 
to  preserve  them  as  they  arc,  neither  increased  nor  diminished,  and 
th  reby  tho  Union  itself  (for  the  Union  may  bo  as  elTeetually  destroyed 
by  increasing  as  by  diminishing  its  powers  —  by  consolidation,  as  by 
tlisni.ion  itself),  would  be,  I  would  say,  had  I  not  great  res])('et  for 
Miiiny  who  do  thus  apply  it,  egregious  trilling  with  a  grave  and  deeply- 
iii'.portant  constitutional  subject."" 

All  who  liiiv(>  been  convinced  liy  tlu>  argtiincnts  against  tlio  riglit 
of  scc'CHsiou  will  liavc  little  difliciilty  in  pcnHMving  tliu  weakness 

» Mr.  Calhoun's  letter  to  Gonoriil       1832.     rallinun's    Speeelios,    Ist    ed., 
Hamilton  on  tlio  Hiil)ject  of  State  Iril  im-       1813,  pp.  51-50. 
position,  dated    Fort  Hill,    Aug.   28, 


142 


^-'ATlIiE    OF   TMIO   t'ONSTITUTION. 


[CIIAI'.  !l. 


of  the  position  of  Ciillioun.  Even  those  who  chiini  that  se^'essioii 
is  loEjal  ihid  it  hard  to  admit  liis  (h)otrine  of  nullilieation.^"  T'ci- 
if  t!ie  aets  of  the  Union  eouhl  at  any  time,  in  pe.ice  or  war,  he 
paralyzed  hy  tiie  objeetions  of  a  sinjjle  State,  the  Constitution 
wouhl  be  no  stronger  than  a  rope  of  sand,  and  the  work  of  the 
Federal  Convention  would  have  been  indeed  in  vain. 

If  that  instrument  were  merely  a  treaty  which  formed  a  league, 
not  only  is  there  notliing  in  its  context,  but  every  princijile  of 
law,  nuinicipal  and  international,  forbids  that  a  luendjer  of  the 
Confederacy  sliould  retain  its  mend)ersliip  and  enjoy  its  Ijcnelils 
while  at  liberty  to  violate  its  conditions,  which  require  that  the  citi- 
zens and  courts  of  every  State  shall  obey  the  Federal  laws  and  give 
to  the  Supreme  Court  of  the  United  States  the  right  of  ultimate 
deterniinallon  as  to  the  constitutionality  of  acts  of  Congress." 
licfu.sals  by  the  different  States  to  comply  with  the  resolutions  of 
Congress  had  been  common  under  the  Confederation,  and  for  that 
])nrj)ose  tin;  C<uistitution  was  so  sbaj)ed  that  the  laws  of  the  United 
States  should  operate  directly  upon  the  citizens  of  the  States,  with 
])enalties  upon  them  for  infractions.  This  i<lea  was  expressed 
constantly  in  the  State  as  well  as  the  Federal  Convention.'^     The 

spo.akinv!  of  Judgf  Sliiukpy :  "  Hi?  lifiil 
been  an  advocati'  of  iiulUllcaUon — a 
ilDi'trir;'  to  wliich  I  hid  novor  as- 
si'iitc'd,  and  which  liad  hcon  at  one 
tinio  Uu!  main  insue  i!i  Misslssipiil 
politics."     Il)id.,  vol.  1,  ]!.  2M. 

"  The  armimcnls  a^-iinst  Iho  con- 
Hlitutioiiality  of  niillillcallon  may  lio 
found  i]i  Wi'liKtcr's  Reply  to  Hiiyric, 
.I.icUson's    ri'Oclaniation,  and    l);uu''rt 


''  The  doctriiio  Is  oxprcssly  repu- 
diated by  li.  .T.  Sa«e  in  Thi>  Ilepublic 
of  Republics,  4!h  ed.,  p.  2tiO  :  "  ]?ut  a 
Slati-  or  its  ("invention  has  no  riKhl  to 
withdraw  some,  and  leave  the  rest  of 
tlie  powers;  orobsliucl the  exi'culion 
of  a  part;  m-  annul  ii  law,  whije  ad- 
hering to  til'-  Tniun  ;  In'  tin"  Const  ilii- 
lion,  beinj;  a  eompan.  is  not  to  be 
liartly  suspended  and  jiarlly  executed, 
by  one  of  the  parlies."  .lelTerson  Davis 
also  said,  in  his  farcnvcll  speech  in  tlie 
Senato  (The  Rise  and  Fall  of  the  Con- 
federate Government,  vol.  I,  pp.  221, 
222)  :  "  I  hope  none  wlio  hoar  mo  will 
confound  thispxprcssioM  of  mine  with 
tlio  advocacy  of  the  rinhl  of  a  Slate  to 
remain  in  the  I'rnon,  and  to  ilisreuard 
its  cotistilutioiial  oblinalions  by  the 
nnllillcation  of  the  law.  Such  is  iiol 
my  theory.  Nullillcalion  and  seces- 
sion, so  often  confounded,  are  indeed 
untagonlstlc  principles."    And  again, 


.\bi'idni'ment,  vol.  ix,  Appeiidix. 

'-  In  th(!  ConnecticuL  convi-ntion, 
Oli  v<M' Ellsworth,  afterwards  Chief  .fus- 
tice  of  llw  rniled  Slates,  said  :  "  IIow 
<'ontrary,  then,  to  republican  princi- 
ples, liiiw  luindliatiiin  is  our  presen; 
situation!  A  single  Slate  can  ri.se  \ip 
and  put  a  Xfto  upon  tlie  most  impor- 
tant public  measures.  We  h,iV(?  seen 
Ihls  actually  lake  |ilace.  .V  single 
.Slat<'  has  controlled  th<"  (.'ciieial  voice 
of  Iherrdon  ;  a  minority,  a  very  small 
mim)rity,  luis  governed  \is.     Bo  far  is 


S3C.] 


St'.'  1.IFICAT10N. 


I4;i 


|)()W('r  of  the  Supreme  Court  of  the  United  Stiites  to  determine 
liiiidlv  as  to  the  constitutionality  of  ii  State  statute  or  act  of  Coii- 
ijivss  liad  been  intentionally  granted  by  the  Convention ;  and  its 
cXL'n.'ise  had  been  repeated.'''  In  one  case  such  a  decision  had 
been  enf(nced  with  the  approval  of  President  Madison  against  the 
militia  of  a  State,  called  out  to  support  an  act  of  the  Stiite  legis- 
lature dirt-Lting  resistance  to  the  judgment ;  the  State  militia-men 
had  been  tried  and  convicted  for  their  ol)edien(;e  to  the  State 
Statute  ;  "  and  wlieu  the  State  legislature  reeonunended  a  coiLstitu- 
tional  amendment  to  provide  an  umpire  for  future  conflicts  be- 
tween State  and  Federal  authorities,  no  other  Stivte  concurred,  and 
the  legislature  of  Virginia  unanimously  voted :  — 

"That  a  tribunal  ia  already  provided  by  the  Constitution  of  the 
United  States,  to  wit  the  Supreme  Court,  more  eminently  qualified,  from 
their  habits  and  duties,  from  the  mode  of  their  selection,  and  from  the 
tenure  of  otliee,  to  decide  the  disputes  aforesaid  in  an  enlightened  and 
iaipiirtial  manner  than  any  other  tribunal  that  could  be  created."" 


this  from  boinf?  conaistont  witli  rcpub- 
liiari  principles,  tliat  it  is,  ia  offect, 
I  111!  woisl  upedcs  of  inonnr('li.v.  Heuco 
wi;  i^i'i'  liiiw  ueoosBury  for  tln>  Union  iH 
the  ciMiTive  pi'iiieiple.  No  man  pre- 
tends tlio  eontmiy  ;  wi!  all  s<m)  and 
f<M>l  I  Ills  neeesHity.  Tlioonlyqu(!!*tion 
is,  KhiiU  it  lie  a  eoerciou  of  law,  or  a 
loeic'icin  of  arms?"  "I  am  for  eoor- 
elon  by  law  —  that  eooreiou  which  acts 
eiily  upon  dellnriuont  individuals." 
"Tliis  le;;al  eoereion  sinRles  ont  tho 
^{iiilty  individual,  anil  |>unlshes  him 
for  bieiikiiiH  tho  laws  of  the  Union." 
Klliots  Debates,  2d  <-(!.,  vol.  v,  p.  197. 
In  the  .'.amn  speecb  Ellsworth  8peak.s 
of  (lie  power  of  "tli(!  national  jndj^es 
to  declare*  void  an  act  of  Congress  not 
anlhorized  by  the  ronstitnlion."  Ibid., 
p.  liMi.  Se(>  also  tho  nuthorilies  cited 
Hiiiini.  §  17. 

II  T'.  S.  r,  TeliM-s,  .'■)  Craneh,  p.  115, 
.\,  I>.  IHIIS  ;  Martin  v.  Hnnler's  Lessee, 
1  Wliealon,  y.  ;l(IJ,  A.  D.  IMKi  ;  (\il\ens 
r.  Vir^'lnia,  11  Wheaton,  p.  ;i01,  A.  V. 
iNiil.    Tho  history  oi'  this  subject  will 


bo  dispusscd  subspquontly  in  tho  chap- 
ter oil  thi!  Judicial  Power. 

"  This  was  tho  famous  case  of  tho 
sloop  Active.  Journals  of  Congress, 
vol.  V,  p.  372  ;  Ro:;s  et  al.  v.  Ritten- 
house,  2  Dallas,  p.  IGO,  A.D.  1792;  U.  S. 
I'.  Fetors,  .5  Crawh,  p.  11,';.  A.D.  1808; 
Trial  of  General  Brifjht  by  Kichnrd 
Peters  ;  The  wholo  Proi'eedinns  in  the 
case  of  Olmslead  r.  Ulttenhouse,  Phil- 
adelphia, 1K09;  Olmsted's Ca.se,  Bri«ht- 
by  (Pa.),  1;  The  case  of  tho  Sloop 
Active  by  Hampton  L.  Carson,  The 
Ciroeii  Han,  vol.  vli,  p.  17 ;  Carson, 
History  of  the  Supremo  ("ourt  of  the 
Uidted  States,  vol.  1,  p.  2ir). 

>■''  E.\tract  from  (he  jouinal  of  tho 
Senate  of  the  Commonwealth  of  Vir- 
ginia, befiun  and  held  at  th(*  Capitol 
in  the  CKy  of  Richiiioiiil,  the  fourth 
day  of  December,  1H09  :  - 

"Friday  January  21!,  IHIO; 

"llr.  Nelson  reported  from  (lie  coin- 
mi((<>e  to  whom  were  c(mifni(.teil  tho 
preamble  and  resolutions  on  tho 
amt'udmeut  proposed   by  the  legisla- 


144 


NATURE   OF   THE   CONSTITCTION. 


[CHAr.  11. 


Tlu!  (lot^trine  of  nullification  can  find  no  support  in  the  language 
of  the  Constitution.     It  is  in  direct  conflict  with  the  spirit  and 


turo  of  PiMinnylvaiiiii,  to  Iho  consti- 
tution of  tlio  United  Statos,  l)y  the 
nppointnicnt  of  an  impartial  tribunal 
lo  (lociild  disputes  Ijctwoen  llio  stato 
iind  federal  jiidieiary,  that  the  eoni- 
irdttee  liad,  aeeordin!^  to  order,  talvon 
the  said  ]ireanil)les  and  resolutions 
under  theireonsideration,  and  directed 
Inmto  report  tlieni  without  any  amend- 
ment. And  on  this  question  being  put 
lliereu])on,  tin?  same  were  agri.'ed  to 
unanimously,  by  tlie  House,  as  fol- 
lows: 

"The  committee  to  whom  was  re- 
forred  the  communication  of  tho 
Crovernor  of  Pennsylvania,  covering 
certain  resolutions  of  the  leglslaturo 
of  that  State,  proposing  an  amend- 
ment lo  tho  constitution  of  th(>  United 
States,  by  the  appointment  of  an  im- 
partial tribunal  to  decide  disputes  be- 
tween tho  Slate  and  f<'deral  judiciary, 
ave  had  tho  same  under  their  con- 
sii>ratlon,  and  are  of  opinion  that  a 
I  ribi.nal  is  already  jirovided  by  the  con- 
stilut  on  of  the  United  States,  to  wit : 
The  f  upremo  Court,  more  eminently 
i|uali  led,  from  llieir  hal)itsand  duties, 
fnui.  tho  mode  of  their  selection,  and 
from  tho  tenure  of  their  offices,  to 
decide  the  disputes  aforesaid  in  an  en- 
lit»htened  and  impartial  manner,  than 
any  other  tribunal  which  could  be  cre- 
ated. Tho  mendiers  of  the  Supremo 
Court  are  selected  from  those  in  tho 
United  Slates,  who  are  most  celebrated 
for  virtue  and  legal  learning,  not  at 
the  will  of  a  single  individmil,  but  by 
I  he  concurrent  wishes  of  tl\e  President 
and  Seiwito  of  the  TJinted  States;  they 
w  ill  therefore  have  no  h)cal  prejuilices 
and  partialities.  The  duties  they  have 
to  perform  lead  them  necessarily  to 
the  most  enlarged  and  ac<Mirato  ac- 
<iuaintanee  with  the  jurisdietiou  of  tho 
federal,  and  several  State  courts,  to- 


g(!ther  with  tlie  adndrable  symmetry  of 
our  government.  The  tenure  of  tlieir 
offices  enables  them  to  pronounce  the 
sound  and  correct  opinions  tliey  may 
have  formed,  without  fear,  favor,  or 
I>artiality.  The  amendment  to  tlio 
constitution  proposed  by  Pennsylva- 
nia, seems  to  be  fcumded  upon  tho 
idea  tluit  the  federal  judiciary  will, 
from  a  lust  of  jiower,  eidargo  their 
jurisdiction,  to  tlie  total  annihilation 
of  the  jurisdiction  of  the  stato  courts; 
that  they  will  exercise  their  will  in- 
stead ot  the  law  and  tlie  constitution. 
This  argument,  if  it  proves  anything, 
would  operate  more  strongly  against 
tho  tribunal  proposed  to  bo  created, 
which  promises  so  little,  than  against 
tlio  Supreme  Court,  which  for  the  rea- 
sons given  before,  have  overytliing 
connected  with  tlieir  appointment  cal- 
culated to  iusuro  confidence.  What 
security  have  we,  were  tho  proposed 
amendment  adopted,  that  this  tribunal 
would  not  substitute  tlieir  will  and 
tlieir  ]ilcasure  in  place  ot  tho  law? 
The  judiciary  are  tlie  weakest  of  tho 
tlirc'e departments  of  government,  and 
least  dangerous  to  the  political  rights 
of  the  constitution.  They  hold  neither 
the  imrse  nor  the  sword  ;  and  even  to 
enforce  their  own  judgments  and  de- 
crees, must  ultimately  depend  upon 
the  executive  arm.  Should  the  fed- 
eral judiciary,  liow(ner,  unmindful  of 
their  wealtncss,  unmindful  of  their 
duty  which  they  owe  to  themselves 
and  their  country,  become  corrupt 
and  transcend  the  liniilaof  their  juris- 
(liction,  would  the  [iroposed  amend- 
ment oppose  even  a  probable  barrier 
to  such  an  improlialilestataof  things? 
Tho  creation  of  a  tribunal  such  as  is 
lu'oposed  by  Pennsylvania,  so  far  as 
wo  are  enabled  to  form  an  Idea  of  it, 
from  the  description  given  In  the  res- 


NULLirU'ATIOX. 


1 


Utter  lis  well  as  the  ex])rcs,se(l  intentions  of  tlie  fnmicr.s  of  tiiat 
instniiiient  and  the  precedents  of  lialf  a  century  liefon;  its  pro- 
niul;;iiti()u.  Hud  it  been  recognized  as  a  part  of  our  .system  of 
i^ovcrnnient,  it  would  have  been  as  fatal  as  was  the  Vdicnuii 
iH'io  ill  the  ]'oli.sh  Diet;  the  United  States  would  have  long  siuee 
suHVred  a  partition;  and  the  cause  of  civil  liberty  througjiout  the 
woild  would  have  met  with  a  reverse  from  whieii  it  could 
not  liave  recovered  within  the  century.  ]?ut  although  it  is  hard 
til  liclieve  that  a  mind  so  acute  as  tliat  of  Calhoun  coidd  iiave 
In  lii  llie  dupe  of  its  own  snjiiiistry.  no  lawyer  can  fail  to  admire 
ilir  in;;cnnity  with  which  was  framed  his  scheme  for  resistance  to 
iIic  tiiriff.  and  he  well  earned  his  reputation  as  a  statesman  by  the 
jir;i(tic;d  rcsidt  which  he  obtained. 

§  34.  History  of  NiilliHeatioii, 

I'lic  Tariff  of  Abominations  of  1828  '  bore  with  especial  severity 
upon  the  South,  Avhere  there  were  no  manufacturers  who  desired 

"Tucsdiiy  Jiin  2.1,  IHIO  ; 

"  Tlio  IIouso  (icciinlingli)  lliiuinliT 
of  till)  (lay,  I'c'SDlvod  ilsclf  into  a  coin- 
inittci!  of  tlio  wlidlo  lioiisi^oii  llio  state 
of  Iho  <-(>ninion\v('altli  Hiitl  afti'r  some 
fiiiio  spfiiu  tlid'ciu  JIv.  SpcakiT  rc- 
suiiiod  tlio  cliair  aiul  Air.  llolicrt  Staii- 
ani  ri'Dortcil  that  the  t'omiiiittoti  had 
aci'ordiuK  to  onli'r,  had  umh>r  consid- 
eration tlio  proatiitjlo  and  lesolutious 
of  tlin  select  <'oininitlee  to  whom  wore 
referred  that  part  of  the  Governor's 
eoniniiinicatiou  whieh  rc>lates  to  the 
ainenilnii'iit  jiroposed  to  the  oonslitu- 
tion  of  the  United  States,  by  tlie  len- 
islatvire  of  riMinsylvania,  liad  f;ono 
tliroiigh  the  same,  and  direeted  liiiu 
to  report  them  to  the  House  without 
aini'ndinent ;  which  Iio  handed  in  at 
the  clcMk's  talilo,  nnd  the  <|uestiou 
lieiuK  put  on  aj^rcM'ing  to  tho  said 
preaiiil)lo  nnd  resolulioir  ,  they  were 
agreed  to  l)y  the  House  unanimously." 
I'inckney's  aiRument  in  Cohens  r.  Vir- 
ginia, 0  Wheaton,  2M,  ;ir)H,  note. 

§  I!  I.  1  Act  of  May  lU,  1828,  4  St.  ati 
L.,  p.  240. 


<  iliu  inns  of  t  he  lej^islature  of  t  hat  state, 
Wdiild,  in  tho  opinion  of  your  com- 
inillee,  tend  rather  to  invito  tlinn 
prevent  a  collision  between  tho  fed- 
end  nnd  stall-  eoiu'ts.  It  ininht  also 
lirnmie  in  process  of  time  a  serious 
iiiid  dangerous  endiarrassmeiit  to  the 
(i|ii  rations    of    the    {^oueral    govoru- 

Illi'll!. 

"  Uesolvod,  thoretoro,  that  tho  log- 
ii^liilure  of  this  state  do  disapprove  of 
til.' .inii'iiilment  to  tho  constitution  of 
the  rnili'il  Slates  proposed  bytholog- 
islMiiire  of  Peniisylvauia. 

"  K.'soived  also,  that  his  Excellency 
the  (ii)vernor  be,  and  is  hereby  re- 
qin  s^'d  to  transmit  forthwith,  a  copy 
of  till'  fiireL;oing  preamlilo  and  resolu- 
tions to  eadi  of  the  senators  and  rep- 
l■l■^iclllatives  of  this  stale  in  Conjiress 
iinil  to  tlio  ox(>cutive  of  tho  several 
sillies  in  tho  Union  nnd  re(|uest  that 
thi'Miniebe  laid  before  tho  legislatures 
tU.  nor." 

Extract  from  the  journal  of  the 
Hiiiise  of  Delegates  of  the  Comiiion- 
woalth  of  Virginia:  — 


IK", 


NATiniE   OF   THK   COXSTITITTION. 


[chap.  ir. 


protection.  While  it  was  before  Congress,  the  legishitures  nf 
several  Southern  States  passed  I'esolntioiis  (leelarinf,'  the  uneonsii- 
tutionalily  ol'  a  larii'f  for  purposes  of  proteetion  ;  and  at  the  saniL' 
time  attaekinjf  aitpropriations  for  iuterual  improvements  and  the 
Anu-rican  Colonization  Society.'-'  At  ii  ]>nl)lic  diinier  in  tlie 
autumn  of  lS:iT.  Colonel  Hamilton  of  Soutli  Carolina,  afterwards 
(iovernor  of  the  State,  [imposed  nullification  as  ii  remed}'.''  In 
the  winter  of  lISi'S  and  lW:i!l.  after  tlie  new  tariff  was  in  force,  the 
Southern  States  attain  [)asscd  similar  resolutions.  South  Carolina 
sent  to  tiie  Senate  its  famous  "Exposition  and  Protest"  anjaiiist 
tlie  tariir.'  The  le<,ashiture  of  (ieorgia  resolved  tiiat  the  State  li;i(l 
the  unqnestioiuible  rijrht  "to  refuse  ohi'dienec  to  any  measure  of  ihu 
(ieneral  (ioverinnent  manifestly  ai;-ainst,  and  in  violation  of,  llie 
Constitution.""''  Meanwhile,  threats  of  nullification  were  contin- 
uous, and  tlie  doctrine  was  maintained  and  comhatted  durintr 
Decemher.  ISJU.  in  the  great  debate  between  Webster  and  llayiie. 
On  April  l^Uh,  t8;5(),  .leffeison's  birthday  was  celebrated  by  a 
subscri[itinn  dinner  at  Washington,  with  the  President,  Vice-Pres- 
ident and  Cabinet  among  the  guests.  The  twenty-four  regular 
toasts  savored  of  the  new  doctrine  of  nullitieation.  At  their  con- 
elusion,  .Jackson  1  a. .  called  u|)on  for  a  vohmteer,  and  gave  utterance 
to  his  famous  sentiment:  "Our  Feilenil  Union;  it  nnist  be  pro- 
served."    Till'  N'ice-President.  Calhoun,  followed  with  another:  — 


-  Siiiiinor'sJarlisoii,  pp.  '215,  '21(!  ;  II 
Anicviciin  Aiiniiiil  Ki';;.,  p.  (11;  (icor^ia 
Linvs(itlH'2<,iip.  r,H--21l;  NortJi  Caro- 
lina, SiiiitlU'ariilina,  and  Alaliainn  alsi) 
resolved  apiiiist  tlMMMiiislitutioiiallly 
of  tlio  t  riff.  Acconlinfi  to  I'rofi'ssor 
Siiiniii'r  (p.  21(1),  who  citi's  an  liis 
aulhorily  Ii  Aiiwricaii  Aiimial  Rcf^istcr, 
(14,  Georgia  ulllnncd  tlio  right  of  sn- 
coKsion.  Tho  ri'solutloiiH,  liowt^vcr, 
nowhere  expressly  alllrm  the  ri^lit  of 
secession,  althoii),'li  a  lliriiat  ot  8ee(!S- 
sion  is  inliniiiled. 

■'  Suain(;r's  Jaelison,  p.  212. 

■•  'I'liese  were  drafted  by  Calhoun, 
and  adopteil  willi  some  alteiations. 
The  original  dral'l  of  the  "  pulilliM'x- 
position  of  onr  wrongs  and  (he  reme- 
ilies  wilhiii  onr  jiower  to  lie  eonimnni- 
talcd   to  our  sister  States,"  and  l!u> 


resolutions  contaiuinK  (he  ])rotP:  t  as 
llnally  a<l(ipted,  may  be  found  iu  Cal- 
houn's Works,  vtd.  vi,  pp.  1-59. 

Tin'  Vh'f^inia  le^^lslatnre,  on  Feb.  'Jl, 
182!),  resolved,  amongst  other  lhin},'s: 
"Tliat  the  Constitution  of  tlie  t'lillcil 
States,  iH'iuK  a  Federative  eiunpai-t  be- 
tween tho sovereinn  States,  in  cousln)- 
ing  whieh  no  eomnioii  arbiter  is  known, 
each  Slate  has  tho  right  to  constnn' 
tho  coin)iact  for  itself."  Acts  of  Vir- 
ginia for  1S28-1K2!),  p.  I(l!t.  See  Dane's 
Abridgement,  vol.  i.<c,  \>.  .'iH'.l,  for  a  (  od- 
lemporary  an.swer  to  this  doctrine. 
Sumner's  Jackson,  i)p,  21."i,  21(1,  eon- 
t.'iins  a  general  acconnt  of  tliese  re-n- 
lutions.  See  also,  S.  C.  Laws  of  I'^'i"- 
1S2H,  Appendix,  I'p.  (l'.)-7S:  Isil'.i,  Aiipen- 
dix,  pp.  7I-1III. 

•■■  tloorgia  Laws  of  1>I2S,  p.  175. 


r-'^-j 


NLLLIKICATION. 


147 


••Tiio  I'niou :  next  to  our  Liborty  tlic  most  dear:  may  we  nil  re- 
iiiciiibei'  tliiit  it  can  only  be  preserved  by  respecting  the  ri<;lits  of  the 
S::iti?s,  tuul  distributing  equally  the  benelit  and  burthen  of  the  Union."' 

Till'  Scfi'ctiiry  of  State,  Van  Huren,  then  gave :  — 

"Mutual    forbearance    and    reciprocal   concession:    through    their 

ti  ndriicy  llie  Inion  was  established.     The  patriotic  spirit  from  which 

ilicy  emanated  will  forever  sustain  it."' 

Ill  Niivcuiber  of  the  same  year,^  a  hill  to  call  a  State  Convention 
iiilid  to  obtain  the  necessary  two-thirds  vote  in  the  legishiture  of 
Smith  Carolina.'-'  The  followers  of  Crawford,  in  (ieorgia,  had 
iMJlied  and  prevented  any  attempt  at  nnllification  tlicre.'"  During- 
tlu'  year  18:51,  an  attempt  was  made  in  tlie  United  States  District 
Court  of  South  Carolina  to  test  the  constitutionality  of  the  tariff 
iiy  a  icrusal  to  pay  duty  bonds,  and  a  plea  of  no  consideration ; 
but  tlic  court  refused  to  hear  evidence  on  the  point,  and  tiie 
M  liciiu!  failed. •'  Meanwliile,  threats  of  nnllKication  continned 
fi<iiii  South  Carolina.  Jackson,  in  a  letter  to  a  committee  of 
liti/.ciis  of  Charleston  decliiiiiif^- an  invitation  to  attend  the  Fourth 
ijf  July  celebration  there,  intimated  that  force  would  he  applied 
to  collect  the  obnoxious  duties.'^  Calhoun  followed  in  an  address 
"stating  his  opinion  of  the  relation  which  the  States  and  general 
<,n)verinnent  bear  to  each  other.''  ^■'  'i'he  twenty-second  Congress 
met  Decend)er  oth,  and  an  attempt  to  revise  the  tariff  immediately 
began.  Twelve  days  later  the  legislature  of  South  Carolina  passed 
an  act  suspending  tiie  act  for  the  election  of  members  of  Congress 
and  directing  the  managers  of  the  ne.Kt  general  election  not  to 
open  polls  for  representatives  in  Congress.'^  The  new  tariff, 
wliich  was  signed  July  14th,  1882,  but  was  Jiot  to  take  effect  till 
tiie  following  March,  moditied  some  of  the  abuses  in  the  act  of 
ISiiS,  but  still  maintained  the  protective  system  and  the  conse- 
(liieiit  injury  to  the  Southern  States.  The  day  before  its  signature 
a  majority  of  the  South  Carolina  delegation  issued  a  manifesto 


"  lii'iiton's  Thirty  Yoimh'  View,  vol. 
i,  p.  1 IH. 

■  Shcijard's  Life  of  llarliii  Van 
Biii-iMi,  |i.  KU. 

»  Nov.  ti,  WW. 

"  SiiiiiiM'r'H  .Jackson,  p.  219. 

'"  Iliiil.,  p.  '2U!. 


"  IliUl.,  pp.  219,  220;  7  Amerinm 
Aiimiiil  Rcgislor,  p.  34. 

'-  Sihmmlm'k  Jackson,  p.  2'2ll. 

'"  Thirt  i.s  (inotcd  Hiijirii,  S  :i;t. 

"  Doc.  17,  isai ;  Laws  of  1H;!1,  .h. 
fi21,  rcpcaloil  Dec.  20,  1832  ;  Law.i  of 
lb;i2,  ch.  18. 


14S 


NATl'IlE   OF   TIIK   rONSTITfTION. 


[I'ilAl'.  ir. 


iiiiiunincinEf  that  since  CnnjTrcss  luid  now  iiiailc  tlic  j)rotective 
system  iienuiinent.  and  all  liope  of  redress  from  that  hody  was 
irreeoveralily  J?")ue,  the  le_Lfislativo  j)ower  of  Soiitli  Carolina  must 
determine  whether  "the  rights  and  liberties  which  you  received 
as  a  precious  inheritance  from  an  illustrious  ancestry"  should 
he  tamely  surrendered  without  a  struggle."'  The  nuUifiers  par- 
ried tlu!  legislature  by  a  small  majority.  TIayne  resigned  iiis 
seat  in  tlie  Senate,  wliere.  in  the  ()[)inion  of  his  constituents,  lie 
had  been  the  victor  in  his  conlliet  with  Webster,  and  sacrificed  a 
brilliant  political  future,  in  order  to  lead  as  governor  the  i)ro- 
eeeilings  for  nullification.  Calhoun  resigned  the  Vice-Presidency, 
anil  Wius  chosen  Senator  in  the  place  of  llaync.  October  28tli. 
an  act  was  passed  calling  a  convention  of  the  people  of  the 
State :  — 

"  at  Columbia  on  the  third  Monday  in  November  next  then  and 
there  to  tiilie  into  consideration  the  several  acts  of  the  Congress  of  the 
Cnited  States,  imposing  duties  on  foreign  imports,  for  the  protection 
of  domestic  manufacturers,  or  for  other  unauthorized  objects,  to 
determine  on  the  character  thereof,  and  to  devise  the  means  of  redress; 
and  furtlicr,  in  like  manner  to  take  into  consideration  such  acts  of  tiic 
said  Congress  laying  duties  on  imports  as  may  bo  passed  in  amendment 
of  or  Bubstititiou  for  the  act  or  acts  aforesaid;  and  also,  all  otlicr 
laws  and  acts  of  the  government  of  the  United  States  wiiieii  shall  be 
passed  or  done  for  the  purpose  of  more  elTeetually  executing  and 
enforcing  the  same."" 

As  the  Federal  Constitution  had  been  ratitie<l  by  a  Convention 
of  the  people,  it  was  considered  that  the  State  should  act  in  tlie 
sauu!  maniu'r  when  it  nullified  the  acts  of  tlni  national  government." 
The  Convention  met  and.  on  November  24th,  adopted  the  Ordi- 
naiu'e  of  Xullilication.  In  that,  it  was  declared  and  ordained  by  the 
pen[ile  of  the  State  of  South  Carolina  tbi^t  the  several  acts  ot 
Congress  purporting  to  be  laws  for  tlie  inij)ositiou  of  duties  and 
imposts  on  the  importation  of  foreign  commodities  were  un- 
authorizeil  by  the  Constitution  of  the  I'niled  States,  — 

"  And  violate  the  true  meaning  and  intent  thereof  and  are  null,  void. 
and  no  law,  nor  binding  upon  this  State,  its  olllcers  or  citizens ;  and 

"■  TAniorii'ftnAnnunl  Resistor,  p.  41.  "  Supra,  §  19,  p.  95. 

10  Act  (if  Oct.  2H,  1832,  Appendix  to 
Linv.-^  (if  South  Carolina  for  1831. 


'l: 


s  =■  ••] 


NOLLIFICATIOX. 


t'.l 


;ill  inoiniscs,  contracts,  and  obligations,  made  or  entered  into,  or  to 
tic  made  or  entered  into,  with  purpose  to  secure  the  duties  imposed  hy 
s.iiil  acts,  and  nil  judicial  ])roceodiiij^s  whicli  shall  be  iicrcafter  liad  iu 
iilliniiaiice  tlicreof,  arc  and  shall  be  held  utterly  null  and  void." 

It  was  fuitlicr  ordiiiiied  that  — 

'•  It  shall  not  be  lawful  for  any  of  the  constituted  authorities, 
whether  of  this  State  or  of  the  United  States,  to  enforce  tlie  payment 
of  (hit its  imposed  by  the  said  acts  witliin  the  limits  of  this  State." 

Tliat  it  was  tlie  duty  of  the  legislature  "to  adoi)t  such  measures 
ami  |)ass  such  acts  as  r:u.j  be  necessary  to  give  full  etTeot  to  thix 
orliiiance,  and  to  ])revent  the  enforcement  and  arrest  the  operatiou 
(if  till'  said  acts  and  parts  of  acts  of  the  Congress  of  the  I'liitcd  Slates 
nitiiin  the  limits  of  this  State,  from  and  after  the  first  day  of  February 
next." 

••  That  in  no  case  of  law  or  equity,  decided  in  tlie  courts  of  this 
State,  wherein  shall  be  drawn  in  fpiestion  the  authority  of  this  ordiiiauee, 
(ir  the  validity  of  such  act  or  acts  of  the  legislatme  as  may  be  passed 
fur  tlie  pin'pose  of  giving  ctTect  thereto,  or  the  validity  of  the  aforesaid 
aels  of  Congress,  imposing  duties,  shall  any  ajipcal  bo  taken  or  allowed 
to  I  lie  Supreme  Court  of  the  I'nited  States,  nor  shall  any  <'opy  of  the 
ii'ciiiil  be  permitted  or  allowed  for  that  purpose;  and  if  any  such 
a|i|ieal  shall  be  attempted  to  be  taken,  the  courts  of  this  State  shall 
pKiceed  to  execute  and  enforce  their  pidgments  according  to  the  laws 
ami  usages  of  the  State,  without  reference  to  such  attempted  ai)peal, 
and  the  person  or  i)orsons  attempting  to  take  such  appeal  may  be  dealt 
with  as  for  a  contempt  of  the  Court." 

*'  That  all  persons  now  holding  uny  olllce  of  honor,  jirolit,  or  trust, 
civil  or  military,  under  this  State  (members  of  the  legislature  excepted), 
shall  within  such  time,  and  in  such  manner  as  the  legislature  shall 
|irescribe,  take  an  oath  well  and  truly  to  obey,  execute  uiul  enforce 
this  ordinance,  and  such  act  or  acts  of  the  legislature  as  may  be  i):!ssed 
ia  pursuance  thereof,  according  to  the  true  intent  and  meaning  of  the 
same ;  and  on  the  neglect  or  omission  of  any  such  person  or  persons  so 
to  do,  his  or  their  oli' ?e  or  ollices  shall  be  forthwith  vacated,  and 
shall  be  (illed  up  as  if  such  person  or  ))ersons  were  dead  or  had 
itsiL'ned  ;  and  no  person  hereafter  elected  to  any  olllce  of  honor,  inolit, 
or  \vn!it^  civil  or  military  (members  of  the  legislature  excei)leil),  shall, 
i.iiiil  the  legislature  shall  otherwise  provide  and  direct,  enter  on  the 
e\(eution  of  his  olllce,  or  be  in  any  resiiecl  competent  to  discharge  the 
duties  thereof,  until  he  shall,  in  like  manner,  have  taken  a  similar  oath; 


ir.o 


NATl'liK    or    TIIK   COXSTITUTIOX. 


[•'IIAI'.  II. 


jiiiil  no  jurors  bIkiU  he  finpuiiclled  in  smy  of  llio  courts  of  this  Stiiiv, 
in  any  eiiuHe  in  wliicii  siiiill  lio  in  (inestioii  this  onlinanci',  or  nny  act  of 
tlic  Icf^islatiirc  piisscd  in  ])iir»uanci'  liicrcdf,  unless  lie  siiall  first,  in 
addition  to  tlie  usual  oatli,  have  taken  an  oiilli  that  he  will  well  and 
truly  obey,  execute,  and  enforce  this  ordinance,  and  such  actor  nets  of 
the  legislature  as  may  lie  jmssed  to  curry  the  snnio  into  operation  smii 
effect,  according;  to  the  true  intent  and  nieaninj;  thereof. 

"And  we,  tlie  pco|)le  of  South  Carolina,  to  the  end  that  it  may  be 
lawfully  understood  by  the  government  of  the  I'nited  Stales,  and  tiic 
p(M)|ile  of  the  co-States,  that  we  are  determined  to  maiiil;'in  this  onr 
ordinance  an<l  declaration,  at  every  ha/.ard,  do  further  (Icclnie  liiat  we 
will  not  submit  to  the  application  of  force  on  the  part  of  the  federal 
jiovernmeut,  to  reduce  this  State  to  obedience  ;  but  that  we  will  consider 
the  passaijc,  by  t'onijtress,  of  any  act  anthori/.iu;;  the  employment  of  ;i 
military  or  naval  force  ap;ainst  the  State  of  South  Carolina,  her  consti- 
tutional authorities  or  citizens;  or  any  act  abolishinj;  or  closin>i  the 
ports  of  this  State,  or  any  of  them,  or  otherwise  obstructinj^  the  free 
injiress  and  egress  of  vessels  to  and  from  the  said  ports,  or  any  otliei' 
act  on  the  part  of  the  federal  (jove^-nment,  to  coerce  the  State,  shut  up 
her  ports,  destroy  or  harass  her  commerce,  or  to  enforce  the  acts  hereby 
declared  to  be  null  and  void,  otherwise  than  through  the  civil  tribunals 
of  the  country,  as  inconsistent  with  the  longer  continuance  of  South 
Carolina  in  the  Union ;  and  that  the  people  of  this  State  will  hence- 
forth hold  themselves  absolved  from  all  further  obligation  to  niaintiiiii 
or  preserve  their  political  connection  with  the  people  of  the  other  States ; 
and  will  forthwith  proceed  to  organize  a  separate  government,  and  do 
all  other  acts  and  things  which  sovereign  and  independent  States  may 
of  right  do."  "      • 

Tlic  lepjisliitiire  reassembled,  and  on  December  20tli,  1832,  re- 
jjciik'd  the  act  HUspciiding  the  election  of  nicinliers  of  Congress.''' 
und  jiassed  three  acts  to  ciirry  into  effect  tlie  Ordiiuineo  of  Nul'.ili- 
catioii.  One  of  these  antliorized  tlio  frovcrnor  to  resist  the  en- 
forcement of  the  tariff  act,  and  for  that  pnrpo.se  to  order  into 
service  the  whole  military  force  of  the  State,  to  accejit  tlie  .services 
of  voluuteera,  and  to  imrchiise  tea  thousand  stand  of  small  anus. 
He  was  further  authorized  to  call  out  the  militia,  — 

'«  State  Papers  on  Nullification,  pp.  "•  .S.  ('.  Laws  of  1832,  eh.  xvlii.    Son 

28-31.     The  ordinance   is   |irintc(l  in      note  14,  supra. 
full  in  the  appendix  to  tills  ehuptor, 
infra. 


1 


^:;i.] 


NULLIKICATION. 


151 


Lj 


'•  ill  I'liso  of  nny  overt  act  of  coercion  or  intent  on  tlic  part  of  tlic  jrovi'm- 
imiit  (if  the  I'liited  Slates,  or  nny  ()lll(H>r  thereof,  to  t'oininil  suoii  nn  net 
iimiiiri'steil  i)y  un  unuMnal  un,seinl)hi}?e  of  naval  or  niilitiiry  force  in  or  near 
tlu'  State,  or  tlie  occurrence  of  any  circinnstances  indicatini^  tlic  proba- 
1/iliiy  tliiit  armed  force  is*  about  to  he  eiiii)l(iyed  against  tills  State."'*' 

'I'lii^  form  of  tlu!  oiitli  dircctcMl  Iiy  tlic  Onliiiancc  of  Nullitication 
wiis  f(i]!nul;iti'(l  ill  iiiiotiicr  statute  as  follows:  — 

••  I  do  solemnly  swear  (or  alllrm)  that  I  will  well  and  truly  obey,  ex- 
poiite  and  enforce  the  Ordinance  to  nullify  certain  acts  of  the  ('onj:;re88 
(if  llio  rnited  States.  pui'i)orlin<;  to  be  laws  layinji;  duties  and  imposts 
upon  tlie  importation  of  foreijJin  cominoditios,  jjassed  in  Convention  of 
iliis  State,  at  Columbia,  on  tlie  twenty-fourth  day  of  November,  in  the 
your  of  our  Lord,  One  thousand  ei<;ht  hundred  and  thirty-two,  and  all 
such  Act  or  Acts  of  the  Lefjislatin-e  as  may  be  passed  in  pursuance 
tliiTcof,  according  to  the  true  intent  and  meaning  of  the  same ;  so  help 
ine  God."  ''' 

Tile  most  imjiorttint  act,  liowcvcr,  was  that  regulating  the 
action  of  tlio  State  courts  and  olliccis  under  the  Nullificiition 
OnliiiaiuH'.  wliich  was  drawn  hy  a  tlioroiij^dily  equipped  lawyer 
willi  great  ingenuity,  and,  as  said  at  the  time,  "legislated  the 
Federal  govcrnincnt  out  of  the  State  of  South  ('a)"liua."  ^  The 
eoiisignec  of  inijiorts  sei/x'd  and  detained  for  the  non-payment 
of  duties  exacted  under  the  acts  all'ectcd  h}'  the  ordinance,  was 
given  the  right  to  a  writ  of  replevin,  and  in  case  of  disobedience 
to  the  writ  liy  the  officer  of  the  United  States  in  possession,  the 
wiit  of  vopias  in  withcrnum,  authorizing  the  sliei'iff  to  distrain  the 


l;ltti 


ids 


CIS  goods;  and  similar  process  in  case  ot  a  rt'seizur* 
for  tli(^   recovery  of    money 


Suits 


had    and    received   to  the   plaintiff's 
use,  ill  order  to  rc(;()ver  duties  wliiidi  had  been  \nM  ;  and  writs 


of  li  dicas   coriais    in   case  of  arrest  under 
Ciiiirt  for  acts  in  violation  of  the   tariiT  1 


1' 


;'ss  of  a    Federal 


iws  were  also  a 


nth. 


1/.C( 


1.     Sales  under  ordci 


ju'lf," 


its   of   the    Federal   Courts 


111  proceeding  uiu 


ler  these  acts  of  Congress  were   declared  null 


and  void.     Clerks   and   other  jjuhlic  ollicers   were   forbidden  to 
I'uriiish  copies  of  records  in  cases  where  the  validity  of  the  ordi- 


■■'  S.  C.  LnwH  of  1832,  eh.  v.  --  Von  Hoist's  HlBtory,  vol.  i,  \\  478, 

'-'  Act  of  Dec.  20,  1832 ;  S.  C.  Laws      (lUotiiiK  Grundy, 
of  1832,  ch.  iv. 


ir)-2 


NATURE   OF   THE   CONSTITUTION. 


[CHAr.  II. 


nance  was  drawn  in  question,  under  jjcnalty  of  punishment  hy 
iniprisonnient  for  a  year  and  a  fine  of  a  thousand  dollars. 
Higher  penalties  were  imposed  for  the  removal  of  goods  to  prevent 
their  I'ejjlevy  under  the  act,  resistance  to  the  writ  and  attemj)ts 
at  recajjture ;  and  finally  the  keepers  of  State  jails  were  forbidden 
to  receive  persons  arrested  for  disobedience  to  the  tariff  laws, 
and  they  and  all  pei'sons  who  permitted  buildings  to  serve  as 
jails  for  such  purpose  were  subjected  to  the  same  penalties  us 
clerks  who  should  furnisli  copies  of  the  obnoxious  records.^''  At 
that  time  the  laws  of  the  United  States  did  not  authorize  (lie 
removal  to  tlie  P'ederal  courts  of  such  suits,  and  the  decisions 
of  the  State  courts  could  oidy  be  reviewed  upon  writ  of  enor  by 
the  Sui)renie  Court  of  the  United  States.  The  section  forbidding 
clerks  to  furnish  copies  of  reiords  in  cases  where  the  validity  of 
the  ordinance  was  drawn  in  question  was  intendod  to  2>revcnt 
the  opin'ation  of  sncli  writs  of  error.  Then,  as  now,  the  United 
States  had  no  prisons  of  its  own  within  tlie  States,  and  was  ai.'- 
customed  to  use,  by  jiermission  of  the  States,  State  jails  and 
prisons  t(>  confine  l''ederid  prisonere. 

^Meanwhile,  on  Decend)cr  10,  Jackson  issued  his  famous  proc- 
lamation to  the  people  of  South  Carolina.^' 

The  President  ordered  General  Scott  to  Charleston,  gathered 
tro()i)s  within  a  coiivenii'nt  distaniH',  and  despatched  two  men-of-war 
to  the  same  point.'-^'     (iovernor  llayne  Issued  a  proclamation  i.i 


=3  S.  ('.  Laws  <if  1H:!-2.  cli.  iii. 

'-  This  was  rniiKlil.vcli-iiftcd  liy.Tark- 
Kon,  ri'\is('(_l  ami  cxiiaiidi'il  hy  Living- 
Htoil,  will)  was  Ihrii  Sim  r(>tai'.v  of  Sta!i'. 
Smniicr's  .lacksoii,  p.  'J.S'2.  Hani's  Li .  - 
illusion,  p.  :t7:i.     T.vli'i-'sTaiii'y,  p.  Iss. 

JacKson  wiilisciiniMilly  I'impimI  li'st 
sonn!  (>r  its  (lorti'ini's  coMccrniiii;  tho 
ri'lulions  ii'twi'i'n  the  I'imIimjiI  Govimii- 
nicnt,  and  the  Still I's  iiiif^lit  hi'  incon- 
sistiml,  with  liis  oiirlicr  uttoriiiiiM's,  hihI 
cT)nKc(|iiiMitly  innilillnd  thi'in  in  an  iii- 
splrod  arliclo  imlilisiii'd  sliortl.v  afliT- 
wards  liy  rraiicis  1'.  lilalr  in  tin' 
WashltiKlim  (Hoi"',  cud  i-cpi-inli'd  i;i 
S'.i'pln'Ks.  ('(iiistitulioniil  Vii'W  of  lln' 
War  l.ii'f'Vci'nthi'SlatnsiMiI.  i,  pp.1112  - 


•109),  In  which  11  was  salil  that  he  ad- 
IiiTcd  to  the  prljM-iplcs  cxpiv  iscil  in 
the  Virginia  Kcsoliitions.  Tyler's  Ta- 
ney, p.  l.'tH. 

Tani'.v  Icl'l  in  liis  papers  a  nieirm- 
raiiduni  as  follow-. :  "Iwasal  Annapn- 
lis  Htteiidinn  conrl  when  (ieneral 
.Tackson's  pidelainaliiin  a(  the  time 
the  South  Carolina  nnliillea'.lou  was 
prepa.  i,  and  iicvit  saw  i!.  ■>  itil  It 
was  in  print,  and  cerlainly  should 
have  olijeeted  to  some  of  the  prinei- 
ple.'i  slated  In  il  if  I  had  lieeii  in  Wa-li- 
inu'ton.  U  n.  Taney,  .Tidy,  ISC.I." 
Tyler's  Taney,  jip.  ISS- Ik;). 

-^  Summ'r's  .Jui-kson,  p.  '2H2. 


5;u.] 


NULMPICATION. 


l-)3 


aiiswur  to  that  of  Jiickson.^      The  militia  M-ei'e  drilled  and  over 
twenty  -liousaiid  volunteers  mustered  in  Sou^,h  Carolina,  and  the 


-»  "0,1  tho  27tli  of  Noveinbi-r,  tho 
li'gislalui'O  assiMiibU'd  lit  Columbia, 
iinil,  on  their  nioctinf;,  the  governor 
liiid  lieforo  them  the  ordinance  of  tho 
(■(liivciition.  Ill  hiB  messii(j;e  on  that 
(iccisioM,  Ii(!ae(|uaint8  them  that  'thiH 
onliimijce  lias  thus  become  a  part  of 
lliii  fiiiidtiim'iilal  hiw  of  Houtli  Caro- 
lina'; that  '(lie  die  haa  been  at  last 
cieil,  and  South  Carolina  has  at  length 
ii|i|iealc'd  to  her  ulterior  sovereit^uly, 
as  a  nienilier  of  tliia  confederacy,  and 
has  planted  In^-rself  on  lier  reserved 
rights.  Tho  rlKhtful  exercise  of  this 
piiwcr  is  iiotnquostlon  which  wo  shall 
any  longer  argue.  It  is  sufllcient  that 
she  has  willed  it,  and  that  the  act  is 
(liiMr;  nor  is  its  strict  compalibility 
wilh  cinr  conslllutional  obligation  to 
all  laws  passed  by  th(>  general  govern- 
iiiciil,  wllliin  the  authoii/.(!d  grants  of 
|iii\vrr,  lo  be  drawn  in  (|ueslion,  when 
lliis  imerpdsiiion  is  exerted  in  a  case 
ill  wliicli  the  compact  has  been  palpa- 
l.ly,  (li'liberately,  and  dangerously  vio- 
lated. That  it  brings  up  u  conjuncture 
ef  ile.p  and  momentous  interest,  Is 
ni'iihi'i-  (()  1)0  concealed  nor  denied. 
This  ci'isis  presents  u  class  of  dutli>s 
uhii'h  is  referable  to  ;;  ^urselves.  You 
have  been  coinmandeii  tiy  the  people, 
111  their  highest  sovereignty,  to  lake 
care  that,  within  the  liiiiit.s  of  this 
slate,  their  will  slinll  b  obeyed.' 
'Tli.<  measure  of  legi.slation,  he  says, 
'which  you  have  to  employ  at  this 
crisis,  is  the  precise  amount  of  siii'Ii 
eniiclnients  as  may  be  necessary  to 
render  it  utterly  impossllile  lo  eollecl, 
within  our  limits,  the  duties  imposed 
by  the  protective  tariffs  thiisiiuUitled.' 
lb' proceeds :  'Tliat  you  should  arm 
every  ciijzpn  with  a  civil  process,  by 
which  he  may  claim,  if  he  pleases,  ii 
lesliiuilou  of  Ills  goods,  sel/i'd  under 
'■.Nisiiugimpustt.uuliisgiviugBuciirily 


to  abide  tho  isr.ue  of  a  suit  at  law,  and, 
at  tlio  same  vime,  delino  what  .shall 
eonstituto  treason  against  the  state, 
and,  liy  a  bill  of  pains  and  penalties, 
comp(4  obedieiK'O  and  punish  disobe- 
dience to  your  own  laws,  are|iointstoo 
obvious  to  reiiuire  any  discussion.  In 
one  word,  you  must  survi>y  Ihi'  whole 
ground.  You  must  look  to  and  pro- 
vide for  all  jiossibie contingencies.  In 
your  own  limits,  your  own  cinirls  of 
judicature  must  not  only  bo  supreme, 
but  you  must  look  to  tho  ultimate 
issue  of  any  conflict  of  jurisdiction 
and  power  between  them  and  the 
United  Slates.' 

"'j..;e  governor  also  asks  for  iiower 
to  grant  cli>a ramies,  in  violation  of  the 
laws  of  the  riiion  ;  and  to  prepare  for 
the  allernative  which  must  happen, 
unless  llie  United  Slates  shall  jms- 
sively  surrender  their  authority,  and 
tho  executive,  disreganliiig  liis  oaih, 
refrain  from  executing  the  laws  of  (he 
Uniim,  he  recommends  a  thorough  re- 
vision of  the  militia  system,  and  that 
the  governor,  'be  authorized  toaccejit, 
for  the  defence  of  Charlcstim  and  its 
dependencies,  th(^  services  of  two 
thousand  volunteers,  either  by  com- 
panies or  files ';  and  that  they  be 
formed  into  a  lc>gi(Miiiry  brigade,  con- 
sisling  of  infantry,  ritleiin'ii,  c.-ixali'v, 
field,  and  heavy  artillery;  and  that 
they  lie  'armed  and  etpiipped,  from 
the  pulilic  arsi  mils,  ciMiipli'tely  fiu'  Ihe 
Held  ;  and  that  •ippropriaticMisbe  made 
for  supplying  all  delleiencies  in  our 
munitions  of  war.'  In  addition  to 
these  volunteer  dr«''s.  In-  recommends 
that  the  gover!">r  be  authorized  to  ac- 
cept 'llie  services  of  ten  thousand 
volunteers  from  the  other  ilivisions  of 
Ihe  stale,  I  o  lie  organized  and  arranged 
ill  regiments  and  brigades;  theotllcers 
lo  be  selecti'd  by  liiu  commauder-lu- 


154 


NATfinC   OF   THE   CONSTITUTION. 


[chap.  II. 


State  inaintaiiud  a  hold  front  as  if  actually  resolved  in  plunge 
into  civil  war.-"  Some  curiosity  was  expressed  upon  Calhoun's 
return  to  the  Senate  as  to  wlietlier  lie  would  take  the  oath  in 
sujiport  tlie  Constitution  of  the  United  States.^  He  did  this  witli 
peri'ect  calmness  and  with  entire  consiotency.  For  according  to 
Lis  theor}'  of  the  Constitution,  the  proceedings  in  South  Carolina 
were  perfe(?tly  lawful.  Jackson  sent  in  a  message  reciting  tlie 
proceedings,  stating  the  insufficiency  of  the  present  statutes  to 
deal  with  the  suhject,  and  asking  for  further  powers.  He  iilsn 
ju'ivatcly  sent  word  to  Calhoun  that  lie  woidd  hang  him  higher 
timn  Haman  if  nullification  were  not  abandoned.-"  Callunnrs 
enemies  said  that  he  was  cowed  and  driven  to  cabandon  his  position. 
In  truth,  however,  he  continued  liis  action  with  perfect  coolness 
and  came  '>ut  the  victor.  Threats  by  words  and  action  of  a 
])recipitation  of  an  aruKid  conflict  between  the  State  and  tlic 
United  States  continued  in  South  Carolina  under  the  dii'ection 
of  Hayne  during  January,  1832.^"  A  reduction  of  the  tariff  as 
a  compromise  was  adjusted  after  a  conference  between  Calhoun 
ami  Cliiy.'"     I'ondiiig  its  consideration,  the  nullifiers  at  a  pulilie 


<'hi('f;  and  that  his  whole  force  bo 
<'alli'il  the  Hinte  nuanl.'"  Jackwm's 
N>illillca(i(jn  Messaj^c,  .Jamiai'v  Ki, 
1833. 

'^'i  Governor  Haync's  iTessatJc  to  tho 
Houth  t'arolina  Lcfjisluture,  Nov.  2fi, 
1m;!:!.  L.'K'ishitive  rrooooilinKH  of  1833, 
p.  2. 

2«  Von  Hoist,  Cnlhoiin,  p.  104. 

20  BciiIoh'm  Thirty  Years'  View,  eh. 
Ixxxv,  vol,  i,  p.  3t'2. 

i"^  SiiMiMcr'rt  .Jackson,  p.  28'.),  citing 
Ani"rlie,ii  A?iMiial  IJcfjislcr,  vol.  vili, 
p.  2:10. 

"'  Till'  sci-ri'l  history  of  llic  coni- 
proinlsc  of  1833  is  tohl  by  IJcnlon  in 
his  Tliii'ly  Ycai's'  View,  cli.  Ixxxv,  vol. 
i,  pp.  312-341.  lb-  tlnis  .IcsitIIics  Uki 
suliscipii'nt  aiicicalion  between  the 
two  statesmen,  in  which  each  claims 
to  have  had  the  other  at  a  disadvan- 

tftK'':  — 

"  Mr.  Calhoun  declared  that  he  had 
Sir.    Ciay  down  —  had    him    (m    hiu 


back  —  was  his  master.  Sir.  Clay  re- 
torted :  He  my  master!  I  would  net 
own  him  for  the  meauestof  my  slaves. 
Of  course,  there  were  calls  to  ordiT 
about  that  time;  but  thii  qui'stioii  (if 
mastery,  and  Ihu  causes  whldi  pro- 
duced the  passage  of  tho  a(!t,  wore, 
still  points  of  contestation  between 
them,  and  came  up  for  altercation  in 
other  forms.  Mr.  Calhoim  elaimcil  ti 
conlroling  inlluence,  for  the  mililiiiy 
uttiluili'  of  Sonih  Carolina,  and  its  iii- 
timidalin^;  elTcct  U|Min  (he  federal  t-'ov- 
eiiiment.  Jlr.  Ciay  ridiculed  this  idea 
of  iiitlmid.itio'i,  and  said  the  liUle 
boys  that  muster  in  the  streets  wit li 
their  tiny  wooden  swords,  had  as  \\"li 
pretend  to  terrify  tlie  grand  army  (it 
IJonaparte:  and  afterwards  said  lie 
would  tell  how  it  happened,  nhich  w:i^ 
thus  :  His  friend  from  Delaware  (Mi. 
.bilin  M.  Clayton),  said  to  hlin  one 
day  —  IheselSouth  Carolinians  actvcr\ 
badly,  but  they  are  good  fcUown,  and 


<:;4.] 


«:. 


NULLIFICATION. 


156 


■  icctiiit,'   postponed    action    under  the  ordinance   until  after  the 


ii  is  II  pity  to  lot  Jiiokson  lians  thoin. 
ThiH  wiiw  lifter  Mr.  Cliiy  Imd  liroiii^ht 
in  Ills  l)ill,  and  while  it  liiiKcrod 
without  tho  lonst  nppiiroiit  chauco  of 
piissiii!; —  paralyzed  liy  tlio  velieiiioiifc 
■  i|p|io:-iiioii  of  tlio  iiiiiiHifiU'turers  :  niid 
111'  mixed  Mr.  Clay  to  take  a  new  iliove 
wilh  liis  liill  "-  to  get  it  referred  to  ii 
ciMiiiiiillee  —  and  by  them  pit  into  a 
Hliiipe  in  wliieh  it  eoiild  jmiss.  Mr. 
('I:iy  did  bo    -had  (lie  refen'iiee  niado 

and  a  conmiit'.ee  appiinted  s'.utuble 
I'm-  ilie  measure  —  wmienf  strong;  will, 
anil  earnest  for  the  bill,  and  some  of 
^'eiille  temperament,  ineliiied  to  easy 
iiieasiires  on  hard  oecasions." 

Callioun  yielded  but  one  Important 
priiiei|)lo  during  tho  wholo  coiilio- 
vi'i>y  ;  namely,  his  voto  in  favor  of  tho 
iisM's  Miieut  of  ad  valori'in  diiti(>s  upon 
II  "liomo  valuation,"  whieh  ho  had 
piinliHisly  deelared  to  bo  uneonslitu- 
liiiM.d.  "After  tho  eomndttee  had 
lieeii  .■ippiiinlc'd,  Mr.  Clayton  assem- 
liliil  llie  manufacturers,  for  without 
tli'ir  i-onsent  could  noililuK  be  done; 
ami  in  llie  nieotiiiR  with  them  it  was 
resiiheil  t<i  pass  tho  bill,  provided  the 
Si)iiili"rn  Seimtora,  ineludiiiK  thenulU- 
llcis.  .'-liould  voto  for  tho  amendiuenls 
wliii  h  BlioiiM  bo  ])roposed,  and  for  tho 
p.i-saso  (if  the  bill  ilselt  — tho  amend- 
iuenls being  tho  same  nflerwiirds 
olTireil  in  (he  Senate  by  Mr.  Clay,  and 
eupeelallythe  home  valuiiliori  feature." 
"  His  reasons  fur  making  the  nulliliea- 
tiiin  vote  a  Kiiiv  qiiti  nort  biiih  on  (ho 
atiieiiilmenls  aiul  on  (ho  bill,  and  for 
Ihi'iii  all,  si'parately  and  collectively, 
WIS  to  cut  (hem  off  from  jileailing 
their  imeonslilutioiialKy  after  they 
were  passed;  and  to  luakethouuthorH 
of  disturlinneo  and  ariaod  roHlsdmeo, 
iifler  reslstam-o,  parties  upon  thi'  ree- 
oid  to  the  measures,  luid  every  part  of 
ll:e  meusuros,  which  weri'  to  pacify 
them."      "  Uui[jj,    iue\oniblo    to    his 


claims,  Mr.  Clay  and  Mr.  Caihoun 
agreed  to  the  aiuendmonts,  and  all 
vol  I'd  for  them  one  by  one,  as  Mr. 
Clay  offered  them,  until  it  cams  to  tho 
last  —  that  revolting  niciisure  of  tho 
hoiiu*  valuation.  As  soon  as  it  was 
proposed  Mr.  Calhoun  and  his  friends 
met  it  with  violent  opposition,  declar- 
ing it  to  be  uucoustilu'.ional,  and  an 
insurmoiinlableolislaeloto  their  votes 
for  the,  bill  if  put  into  it.  It  v.as  then 
late  in  the  d;iy,  and  the  la.9t  iliiy  but  one 
of  the  session,  and  Mr.  Clayton  found 
himself  in  (ho  iiredieament  which  re- 
•luired  the  execution  of  his  threat. 
Ho  executed  it,  and  moved  to  lay  it  on 
tho  talilo,  with  tho  ilei'laraliim  that  It 
was  to  lie  there.  Mr.  Clay  went  to 
him  and  liesought  him  to  withdraw 
tho  motion  ;  but  in  vain.  Heremaiued 
inllexible;  and  the  bill  tlun  appeared 
to  be  dead.  In  iliis  oxtremiiy,  tho 
C!allioun  wing  retired  to  theeolonnado 
behind  the  Vice-I'ic'^iileiil's  eliail',  and 
held  a  brief  consultatiou  among  theiu- 
solves;  and  presently,  Mr.  Cllib,  of 
Kentucky,  came  out,  and  went  to  Mr. 
Clayton  and  asked  him  to  withdraw 
his  motion  to  give  him  time  to  con- 
sider tho  amendment.  Seeing  this 
sign  of  yb'lding,  Mr.  Cliiylon  wKh- 
drew  his  motion  —  to  bo  renewed  If 
(ho  amendment  was  not  voted  for. 
A  friend  it  the  parties  immediately 
moved  an  adjournment,  which  was 
carried;  iii;d  (hat  night's  rellectinns 
brought  (hem  (o  the  conclusion  (hat 
tho  amendinont  must  be  passed;  but 
still  with  tho  belief,  that,  there  being 
enough  to  pass  It  without  him,  Mr. 
('alhouii  should  bo  spared  the  hundl- 
iation  of  appearing  on  the  record  in  its 
favor.  This  was  told  to  Mr.  Clayton, 
who  deelareil  it  to  bo  impossibl(>  — 
(hat  Mr.  Calhoun's  voto  was  Indis- 
pensable, as  nolhing  woidd  tie  I'onsld- 
ered  secured  by  the  pas.sageuf  tin'  lull 


15G 


NATIIM-:   OK   TIIK   (JOXSTITUTION. 


[('II A  I', 


adjnuiiuiiL'iit  of  Cdiifrress.''''  Meanwliile,  the  other  State  h'gLs- 
LitiirLS  passed  resohitions,  most  of  which  were  ajraiiist  nullili- 
cation,  some  also  against  the  tariff;  and  Virginia  offered  to 
mo(l;:;tc  liptw^'m  the  United  States  and  South  Carolina.^ 

Wehster  was  ojjposed  to  eoniproinise.  saying:  -It  wouhl  be 
yiehling  great  prineiples  to  faetiou ;  and  that  (lie  time  liad  eoinc 
to  test  till'  strength  of  the  Constitution  and  the  government."  *' 
He  was  eonsequeiitly  consulted  no  further  ujkiu  the  suhjeet,  anil 
voted  against  the  jjassage  of  the  tariff  hill.-'''  .lohn  Quine}-  Adams 
expressed  the  same  oj)inion. 

Pending  the  negotiations  for  a  eomproniise,  the  hill  kuov.n  as 
the  Force  Hill  was  drawn  and  introduced  in  order  to  meet  tlie 
hostile  legislation  of  South  Carolina.  It  contained  certain  heiie- 
lieial  amendments  to  the  judiciary  act,  which  have  since,  with  a 
few  verhal  changes,  remained  upon  the  statute-hook.  The  juris- 
diction of  the  Circuit  Courts  of  the  United  States  was  extcndcil 
to  all  cases  arising  under  the  revenue-laws  for  which  no  jn'ovisiou 
1)3'  law  had  previously  been  made.      They  were  authorized  to  give 


uiiloss  his  vote  aiipoiirod  for  ovory 
nmriiiliucnt  sopanitcly,  mid  for  tlio 
Aviiolo  bill  collci'tivi'ly.  AVlicn  dii'  Srn- 
iiti'  met,  and  the  bill  was  taUcn  up,  it 
was  still  uiiUnnwM  wliat  lie  would  do; 
liut  his  friends  fell  in,  one  alter  (lu! 
other,  yielding  their  ohjeelions  upou 
dilTereut  grounds,  and  nlviui^  their  as- 
sent to  this  most  llajjrant  iusianee 
(unci  that  a  new  one),  of  that  protective 
legislation,  against  «lneli  they  wen- 
then  raising  troops  in  South  C'arolina! 
and  lindling  a  day,  and  that  a  sliort 
on<',  on  whieli  she  was  l(>bi>,  ipno  facto, 
a.  seeeder  from  the  Union.  Jlr.  t'nl- 
lauin  riMuaiiied  to  the  last,  and  only 
rose  when  the  vote  was  ready  lo  be 
taken,  and  prefaced  a  few  reniarks 
Willi  the  very  notable  deelarallon  that 
he  hail  then  to  '  delcrmiiu''  whii'h 
way  he  would  vole.  II,'  then  declareil 
in  favor  of  the  amendment,  bul  upon 
ooiidilioiis  which  he  desired  the  re- 
Jiorlers  to  nole;  and  which  being  fn- 
lllo   lu   theniBolvuB,  only  showed  the 


desperation  of  Ids  condition,  and  the 
state  of  Impossibility  to  which  ho  was 
reduced.  Keveral  senators  let  hiia 
know  iminedialely  the  futility  of  his 
condilions;  and  wilhinit  saying  more, 
he  voted  oil  ayi>s  and  noes  for  t!ie 
ameiidiuenl  ;  and  afterwarils  for  lliii 
whide  bill.  .\iid  this  eoiududing  scene 
appears  (iuili>  correctly  reported  in  tin- 
autlienlii;  debates."  Benton's  Tliirly 
Yi'ars'  View,  cli.  Ixxxv,  vol.  1,  pp. 
313-;!41. 

s-'iSeo  letler  of  Cov.  Koberl  Y. 
Hayneto  15.  W.  Leigh.  ( lovernor,  Coni- 
mis-ioier  of  Virgini;:.  Slate  rajiers 
on  Xullilli'ation,  p.  I!:i:t. 

•"Slale  Tapers  on  Xiilliltcalioii. 
pdmiin.  The  proceedings  between  1). 
W.  Leigh,  the  Conmiissloner  from  Vir- 
ginia, and  till'  Soulli  Carolina  Convcii- 
lioii,  iiri' set  forlh,  ibid.,  pp.  M'J'i  ;!;)7, 
I!  17,  :)rM.:i.-,s. 

■^  IJeiiton's  Tliirly  Veals'  Vii'W,  vol. 

i,  r-  312. 

^  Ibid. ;  Curtis'  Webster,  vol.  i,ii.  1:11. 


§:;-!.] 


>;ri.Lii''icATi()X. 


l'> 


rcl'u'f  ill  a  suit  for  damages  to  all  persons  injured  in  [icrson  or 
lUDlierty  tor  any  act  done  under  any  law  of  the  L'nittMl  States  for 
iIk'  ciiUeetion  of  duties  on  imports.  Autliority  wiis  f^i\en  to  re- 
move into  tlio  Cireuit  Courts  of  the  I'nited  States  idl  suits  in 
State  courts  on  aceount  of  aets  done  under  color  of  tlie  reveiuui 
hius  of  tile  United  States.  A\'rits  of  cculiorari  were  authorized 
til  compel  the  clerks  (jf  the  Stiite  courts  to  fui-nisli  copies  of  the 
records  in  suits  thus  removed;  and  writs  of  haheas  corpus  ciiin 
iviiHii,  to  compel  the  delivery  to  the  United  States  mai-slml  of  those 
iirrcsti'd  mider  State  process  in  such  cases.  Where  no  copies  of 
the  record  of  the  State  court  could  he  o])tained  from  the  clerk,  it 
was  provided  that  the  record  miirlit  lie  sup^jlied  hy  ailidtivit  or 
<itli  'rwise,  and  die  jilaintiff  mifjht  he  com[)elled  to  plead  de  novo. 
'Die  Federal  judges  were  autiiorized  to  gi'ant  a  writ  of  haheas 
corpus  to  release  prisoners  coiilined  uniler  State  process  for 
ohedience  to  the  Federal  statute:  and  marslials,  whi're  the  State 
jails  were  not  allowed  to  he  used  for  tlic  imprisonment  of  persons 
arrested  (uider  laws  of  the  I'nited  States,  were  permitted  to  use 
(itlier  jilaces  of  coniinement.  To  meet  the  siiecial  case,  tlie  wvX 
ciiiitained  two  sections  wiiich  hy  its  tei'Uis  were  oidy  to  last  until 
tlie  end  of  the  next  session  of  Congress.  These  authorized  tlie 
I'rcsident,  "whenever,  hy  reason  of  unlawful  ohstruction,  comhi- 
iiatidii  oi'  assemhlages  of  persons,"  it  liecanie  impractieahle,  in  his 
judgment,  to  execute  tlie  revenue  laws  and  collect  import  duties 
ill  tlie  usual  way,  to  change  the  location  of  the  custnm-house  to 
t'l  aiiiiiiicr  place  or  to  a  vessel  within  tlie  ]i(U'l,  and  to  use  llie 
army  and  navy  to  resist  any  attempt  to  remove  llie  cargot's  exce[it 
under  process  of  a  i'\'(lcral  court  ;  and  also  on  tlie  ollirial  certificate 
liy  St  lie  authorities  or  the  I'\'(]eral  jmlge,  that  there  was  olistruc- 
tinii  to  tlie  execution  of  tlu;  laws  of  the  I'nited  States  iti  any 
district,  to  use  tlie  army  and  navy  to  sn])press  the  insurrection  and 
ciiinpel  olu'ilielice  tii  the  laws  uliicli  were  resisted.**  Pending  the 
consideration  of  tlu'se  hills,  Calhoun  introduced  into  tlie  Senate 
Ills  resolutions  concerning  the  nature  of  tlie  Constittition  of  the 
I'nited  States,  \^hich  wen?  the  occasion  of  the  famous  deliate  lie- 
Iweeii  him  and  Welisti'r  tn  which   I'cferenre   has  previously  heeii 


™  Act  of  iiiiiih  i.  is:i:),  r.  s.  St.  at  I,.,  cli.  iv,  pp.  (;;i2  ont. 


158 


NATriii':  <»K  Tiir.  coxsi'm  tiox. 


[CIIAI'.  II. 


iimdi'.-''"    On  Miircli  2il.  18:5;!,  tlio  riesideiit  signed  tlie  bill  forthu 
coiiiproniise  tiiriff,**  and  thu  enfoirenient  bill. 

.Maicb  lltlu  tilt!  Convention  iviisseiublud  in  Sontli  Carolinii;  le- 
jicalcd  tlie  Onlinani-o  of  XuUiiieation  on  account  of  the  passajfc 
of  tlie  new  taritf;  and  on  the  18tli,  went  throu<,'h  the  form  of 
nullifying  the  enforcement  act,  —  a  perfectly  safe  proceeding;, 
since  obcdienci;  to  the  tariff  prevented  any  test  of  its  validity.'^ 
A  year  latc^r.  the  Supremo  Court  of  South  Carolina,  by  a  vote  of 
two  to  one.  held  that  the  recjuirement  of  an  oath  of  allegiance  to 
the  State  ignoring  the  Constitution  of  the  I'nited  States  was  ;i 
violation  of  t\u'  State  Constitution,  which  forbade  new  (jualiti- 
cations  for  oiru-c.  One  of  the  judges  held  that  it  was  also  a 
violation  of  the  ( 'onstitution  of  the  United  States.  'I'lie  dissi'iilini,' 
judge  held  the  act  imposing  the  oath  valid,  and  in  his  opinion 
maintained  the  rights  of  ludlilication  and  secession.'"  'l"he  State 
CouHtitution  was  subsecpiently  amended  so  as  to  rcMpiire  that  pulilie 
ollicers  should  swear  allegiance  to  both  the  State  and  the  I'nittMl 
States.  'Die  controversy  terminated.  ICach  side  clainu'd  a  vic- 
tory. Calhoun's  policy  had  l)cen  sueiiessful.  and  tiie  result  en- 
couraged his  succi'ssors  when  they  put  to  the  test  the  doctrine  of 
the  riffht  of  secession. 


S  ;jt"».  C!oiistitiitioiiaI  Aspects  of  Slavery.' 

The  Constitution  secured  the  South  against  discriminating  taxes 
upon  slavt's.^  It  gave  Congress  no  power  to  interfere  with  slavery 
within  the  difl'erent  States,  except  possibly  in  time  of  war.  It 
also  ordered  the  return  ot  sla'cs  who  had  esca[)ed  into  a  free 
State.'''  About  these  points  there  could  be  no  doubt;  and  they 
provoked  (he  speech  of  Wendell  I'hillips:  '•  The  Constitution  is 
a  conipact  with  hell,  (iod  damn  the  Constitution  of  tiio  United 
States.''  It  was  clear  also  that  Congress  had  power  to  proliibit 
the  international  .'-•lave-trado  after  1S()8.  a^:  it  did  in  1MI)7.  and 
the  slave-trade  witiiin  the  District  of  Columbia,  as  it  diil  in  1S,")0. 


■■"  Supra,  §  Hi,  niitc  13. 

■1"  4  Slat.  (11  L.,  p.  iVl'.). 

■'■'  Slntc  Papi'is  Kii  Niillillciition,  pp. 
352,  :i.-,H-:)71. 

<''Siiit(;  ox  ri'l.  McCi'i'iiily  V.  niiiit, 
2  Hill  (.S.  C.  L:i\vj,  1,  A.  D.  Will.     This 


vdIiiiih!  is  iilsi)  piilillslii'il  scpiii'iilcly 
as  Tim  HdoU  of  Alli'v;iii,'ii'i'. 

»(  35.  'All  till'  ipii'siiDiis  slali'il  in 
this  Kcclidii  will  III-  ili-.iMissoil  lali-r 
'iiuhr  thii  iippnipriiilii  IHIch. 

-  Ciiii'^Jlii'iii!!,  Arlicli'  I.  Si'didM  0. 

"  I'Dusliiiitiiiii,  .Vi-lii'li'  IV.  iSMrli(ur2. 


•] 


CONSTITrriONAL    ASl'KCT    dl'    SLAVEUV. 


ISO 


,i:i(l  lo  ;il)()llsli  whivt'iy  in  the  District ;'  iiltli(m<;Ii  the  Conslitu- 
!ii]iiiil  ufuuriuity  of  private  property  niij^ht  hitve  been  invoked  to 


-  4 


impel  coniijensiition 


in  ea.se  of  abolition.     The  free,  as  well 


till'  slave  States,  had  absolute  I'ontiol  over  slavery  within  their 
jiirisilietion.  Aeeordinji^  to  international  law,  slavery  is  a  status, 
ilic  iv((iL;niti()n  of  which  is  within  the  discretion  of  the  State  to 
uiiicli  a  |ierson  lield  as  a  slave  elsewhere  is  hroucfht.  and  eonse- 
iliuntly  it  was  usually  held  within  the  free  Stab's  that  slaves  were 
lice  when  ])r()Uj4'ht  there  voluntarily  by  their  master,  eitlier 
I'lir  [lei-nianent  resideiiei'  or  in  the  <'ourse  of  transit  from  one 
|);irt  (if  the  country  to  aiiotlier.'''  Tliese  points  were  also  y^cnerally 
ciiiiccded.  But  great  friction  had  been  caused  by  the  decisions 
of  ilu!  N'ortheru  c<nirt,s  in  eases  of  tlie  last  kind  ;  the  ab()litionists 
attacked  the  fuj^itive  slave  hiw  as  unconstitutional  in  some  of  its 
lirovisious;  and  the  slave-ownei-s  made  the  same  objection  to  the 
personal  liberty  laws  of  the  Northern  States  which  impeded  the 
icciijiture  of  slaves.  Much  complaint  was  made  in  New  England 
iiUMJiist  the  legislation  of  the  slave  States  on  the  coast,  esi)ecially 
ill  Siintli  Carolina,  which  imposed  restrictions  up;)n  the  liberty  of 
ciildicil  sailors  on  vessels  from  the  North.  These  laws,  also,  were 
;itt;ukcd  as  impairnu'iits  of  the  privileges  and  inimuiiitics  secured 
liy  tlie  Constitution  to  citizens  of  other  States."  The  South 
ilaiiiu'd  that  this  clause  of  the  Constitution  did  not  aj)[)ly  to 
negroes;  and  a  majority  of  tlie  Supreme  Court  in  the  Dred  Scott 
<;isc  had  concurred  in  this  view,  which  was  expre.sseil  in  the 
iliitniii  of  Chief  Justice  Taney,  that  when  tlu^  Constitution  was 
iidoptcd.  it  was  considered  that  the  blacks  "hail  no  rights  which 
the  white  man  was  bound  lo  lespect.""  'I'lie  demonstration 
liy  .Imlgi'  Curtis  in  his  dissent,  that  this  o])ini(iii  was  uiisiuuid, 
was  accepted  by  the  Niirlh.  The  more  imjxirtaiit  iiucstioiis, 
liiiwcvcr,  were  those  upon  which  in  general  conti'ovcrsies  arose. 
Ciiiigrcss  had  the  power  to  regulate  interstate  commerce.  Did 
that  iiirlinle  the  jiowcr  to  regulate  the  interstate  slave-trade  ' 
Ami  ciinid  Congress  thus  compel  a  free  f)r  a  slave  State  to  allow 
llic  intio  liictioii  of  slaves  from  other  States  without  her  will'/  Dr 
on  IIh'  iithcr  hand,  could  it  forbid  the  transportation  of  slaves  from 

I  (!iinHii:iitliiii,  Arlii'lu  I,  Sci'tlon  8.  "  ('oii-intulioii,  Article  IV,  Si-ciioii  'J. 

•'' I.emiiioii   r.  I'ropli',  20  N.  Y.,  r,l\2,  'Drul  Sciitt  i'.  SamUurd,  11»  How.  ;!02, 

iiiiil  cusi  s  cilod  in  iir^iiincnts  of  cuunsfl.      -107. 


160 


NATURE  OF   THE  CONSTITUTION. 


[cH.vr.  ir. 


oni'  State  to  anotliiT.'  A  majority  of  the  juHtk-t's  of  tlii'  Suprur.ie 
Court  of  ilie  I'liiti'd  Status  liail  agreed  that  the  seeonil  at  h':ist 
C'ou.kl  not  l)e  (hme.'*  Tlieir  opinions  were,  however,  mere  dieta, 
and  the  ease  was  deeided  upon  another  point.  Lincohi,  in  liis 
debate  with  Doughis,  had  expressed  himself  as  uneertain  upon 
tile  suhject,**  and  liad  the  J{epu1)Uean  party  inerea.sed  in  power, 
undouhtedly  some  attempt  at  interferenee  Avith  slavery  woidd 
have  been  made  in  that  direction.  The  live  (piestiou  was 
as  to  the  riglit  of  Coniiress  to  regulate  slavery  in  the  Terri- 
tories.  For  if  slavery  was  not  extended  to  them,  they  wonld 
enter  the  Union  as  free  States ;  and  in  that  wa3-  enougli  of 
a  majority  might  be  obtained  to  amend  the  Constitution  so  as 
to  obliterate  the  sections  which  protected  propert}^  in  man.  By 
the  Missouri  Compromise  in  1820,  it  had  been  provided  that 
slavery  should  not  be  allowed  in  the  territory  aetpiired  from 
Fi'ance,  north  of  the  parallel  of  3G°  30',  whiidi,  when  extended 
to  the  Pacific,  included  all  but  a  small  fraction  of  Avhat  are  now 
the  States  of  Texas,  New  Mexico  and  Arizona,  the  Indian 
Territory,  Oklahoma,  and  a  large  part  of  Southern  California." 


0  Groves  v.  Slaughter,  15  Tetcrs,  49. 
Disiwasioiiiite  iirguiuents  in  support  of 
this  power  of  Cuiigrcss,  iiml  tlio  coiisc- 
qui'iilliujlj  of  power  in  llie  Stati's  to  iii- 
terfrro  with  sucli  inUTstale  traflic,  were 
iiiaile  by  Clay  anil  Webster  atllic  liar  in 
this  ease.  On  the  oilier  liaiiil  llie  act  of 
Mareii  2,  IHIIT  (2  St.  lit  L.,  pp.  i2'.),  i'M), 
whieh  aholislicd  tlie  international  slave- 
trade,  in  Seotioii.s  0  and  U),  regulated 
the  interstate  slave-trade  so  far  a.s  the 
.shipment  of  slaves  on  coasters  was 
concerned.  In  1818  the  New  .Tersey 
Icslslalnri!  instructed  the  Slate  delega- 
tion in  Coimress  to  procure  an  act  pro- 
hibitiiij;  the  transportation  of  slaves 
from  iuiy  State  wliose  own  law.s  forbade 
it.  (Si'liouler's  History  of  the  United 
States,  vol.  iii,  pp.  M:!,  144,  note,  cilins 
.Tournals  of  Congress,  Deiemher,  181H.) 
(•no  of  the  features  of  the  Clay  com- 
promise of  1850,  as  originally  Introduced, 
was  tlie  declaration  "  that  Coiil'itss  has 
no  power  to  prohibit  or  obstruct  tho 
trade  in  slaves  between  the  slave-holding 


States,  and  that  the  admission  or  ex- 
clusion of  slaves  brought  from  one  into 
another  of  them  deijends  exclusively 
upon  their  own  particular  law."  (Last 
resolution  iiilroilucod  by  Henry  Clay, 
Jan.  29,  IfuO,  Cotton,  Last  Years  of 
Henry  Clay,  p.  102.) 

»  Debatits  between  Lincoln  and  Doug- 
las. Speech  of  Lincoln,  at  Kreeport,  111., 
April  'JT,  18.J8,  p.  8!). 

'"  The  language  of  the  statute  was  as 
follows :  — 

"  And  be  it  furtlmr  enacted  that  in 
all  of  that  territory  ceded  by  France 
to  (he  United  Stales  under  the  name  of 
Louisiana,  which  lies  north  of  ',i()°  and  .H' 
north  latitude,  exceiiting  only  such  part 
thereof  as  is  included  within  the  limits 
of  tlio  Stato  contemplated  by  this  act, 
slavery  and  involuntary  servitude,  other- 
wl.se  than  in  the  punishment  of  the 
crimes  wliereot  the  party  shall  liave 
been  duly  convicted,  shall  be  and  i« 
hereby  forever  prohibited ;  Provided, 
Always,  That  any  person  escaping  into 


^35.] 


rONSTITl'TrONAIi    ASI'KCT   C)I'    SLAVKRV. 


ItU 


It  Wiis  tilt"  geiu'ial  iin<U'istan(liii(r  at  tlii'  tiiiic  that  this  was  a 
]),'rui:uii'nt  adjustiiR'ut  of  thi-  dividiiiff  liiu;  hi'twecii  free  and  shive 
icniliiries  for  the  future,  aud  it  was  continued,  although  with  some 
(i|  |iosition  from  the  free  States,  upon  the  annexation  of  Texas  in 
liS4.')."  Many  in  tiie  North,  however,  rebelled  against  such  a 
settlement,  and  subsequent  attempts  were  made  by  their  repre- 
siiitalivcs  to  disregard  it,  especially  when  the  Wilniot  Proviso,'^ 
uliicli  affei'ted  the  land  subsequently  acquired  from  Mexico,  was 
|)i(i[ii)se(l  and  nearly  adopted.''''     The  Missouri  Compromise  was 


the  snino  from  whom  labor  or  service  is 
lawiiilly  c'iMinied  in  any  State  or  Terri- 
tory ill'  llie  United  States,  such  fugitive 
mny  lie  lawfully  reclaimed  and  conveyed 
to  tlie  pTsoii  claiminp;  his  or  lier  labor 
or  service  as  aforesaid." 

"  i)  St.  at  L.,  798;  Stephens,  Constitii- 
tiipiial  View  of  the  War  between  the 
Slates,  vol.  ii,  p.  I(i4;  citins  Congre.s- 
siimal  Globe,  28th  Congress,  '2d  ses.s.,  p. 
lit:!. 

1'^  It  is  B.ild  that  this  provi.so  was 
ori;^iiKited  by  Prince  .lohn  Van  Buren  at 
a  weiiily  dining-club  of  politicians  In 
New  Yorit  City.  Accordi;ig  to  the  story, 
Siiiimel  J.  Tililen  thea  suftgestcd  that 
eaoli  of  tlie  fvee-so'l  representatives  in 
Congress  slioiild  lia"e  a  copy  of  the 
resi'liition  in  his  pocket,  and  ut  the  first 
oiipMrlunity  should  claim  the  floor  In 
orili  r  to  present  it.  The  Speaker  recog- 
iiizi'd  David  Wilmot  of  Penn-sylvania, 
ilie  most  moderato  of  the  crowd,  and 
ilu:s  his  name  secured  a  permanent 
plui'  iu  hi.story.  (Hen.  Perley  Poore,  in 
the  IVislon  Builget,  18S5.) 

''  Tlie  legi.slatures  of  New  York  and 
Venucnt  passed  resolutions  which  were 
sei;t  to  the  next  sension  of  Congress 
after  the  adnnssion  of  Mi.ssonri,  deny- 
ing that  any  compact  was  then  made 
l)''Hvecn  tlie  North  and  .South  for  a 
pennaiient  settlement  of  the  question 
of  slavery.  (See  Stephens,  Const'tutional 
View  of  tlie  War  between  the  States, 
V(il.  ii,  p.  102,  citing  Annals  of  Congress, 
ll'ilh  Congress,  2d  Session,  pp.  2:i,  78.) 
In  1S:18,  upon  the  application  for  .adniLs- 
sioii  into  the  Union  of  Arkansas,  wliich 


was  formed  south  of  the  Compromise 
line  outofapaitof  the  Louisiana  pur- 
chase, .lohn  Ciuinoy  Adams  and  a  num- 
ber of  other  Northern  members  voted 
against  its  admission  as  a  slave  State. 
(Stephens,  Constitutional  View  of  the 
War  between  the  States,  pp.  16,3,  164.) 
In  1810,  upon  the  consideration  of  the 
bill  approiiriatiiig  $2,000,000  for  use  by 
the  President  in  purchasing  t(^rritory 
from  Mexico,  the  Wilniot  Proviso  was 
moved  and  supported  by  most  of  the 
Northern  Whigs  and  a  iiuniher  of  the 
Northern  llemocr.ats.  This  declared  it 
to  bo  "an  express  and  fundamental 
condition  to  the  .acquisition  of  any  terri- 
tory from  Mexico  that  neither  slavery 
nor  Involuntary  servitude  shall  ever  ex- 
ist therein."  At  the  next  session,  Jan- 
uary 15tli,  1847,  when  the  bill  to  organize 
a  territorial  government  for  Oregon  was 
under  consideration,  Burke  of  South 
Carolina,  to  test  the  views  of  the  Northern 
members,  moved  an  amendment  to  that 
clause  of  the  bill  excluding  slavery 
from  the  Territory  in  the  following 
words  :  "  Inasmuch  as  the  whole  of  said 
territory  lies  North  of  30"  :W  latitude, 
known  as  the  line  of  the  Missouri  (,'oni- 
proniise."  This  was  voted  down  by 
1 1.1  against  82.  The  negative  votes  were 
all  from  the  North.  All  the  Southern 
members,  .ind  only  six  from  the  North  in- 
cluding Stephen  A.  Douglas,  voted  for 
the  amendment.  (Ibid.  pp.  ICo,  100.) 
The  Wilmot  Proviso,  which  in  1840  had 
passed  the  House  and  failed  in  the  Sen- 
ate, and  with  its  failure  defeated  the 
$2,000,000  bill,  was  renewed  and  only 


it;2 


N'ATITliK   OF   THE   CONSTITUTION. 


[CHAI'.  II. 


liiially  iila-offiited    hy  tliu  piissiige  of   tlio   Kansiis    and    Nebra.'^kii 
Bill  ill  1^<.">4." 

It  w.xa  till'  cnuiciition  of  the  North  that  the  elauao  in  the  Con- 
stitntioii  which  f^ave  ('oiiirress  power  to  make  all  ntjedful  riilus 
and  n'niilatioiis  respeetin;;'  tiie 'I'erritories  or  other  projierty  belou},'- 
iiijf  to  the  I'liited  States,""  included  alwolule  power  to  reguLito 
their  doiue.stie  iii.stitutions.  'I'lie  South,  on  the  other  hand. 
iiiaiiitaiiuMl  that  the  guaranty  in  the  Fifth  Amendment  of  j)n)- 


dcfi'iiUMl  liy  a  majority  in  1  "^cimte 
of  ten  mill  livu  in  llie  Houm',  upon 
tho  consiUi'ratiDU  of  tliu  s.".,000,()00  bill 
for  tlio  same  purpose  iu  1847.  All 
the  voles  in  its  favor  wore  from  tho 
free  Stales,  except  that  of  Senator 
Clayton  of  Delaware;  ami  all  of  the 
necalivea  were  from  the  slave  States, 
except  live  in  the  Scn.ite,  including  Cass 
of  Miehiwin  and  l)ii;kinson  of  New 
York,  and  tliirleiMi  in  the  House,  in- 
cludiiif;  Donylas  as  before.  In  1818, 
upon  the  bill  for  orL;anizini;  .a  territorial 
government  for  Orej^on,  Douglas,  who 
was  then  in  the  Senate,  moved  to 
strike  out  the  general  restriction  ajjalnat; 
slavery,  and  to  in.scrt  the  following: 
"  Tliat  the  lino  of  ;W  3U'  of  north  lati- 
tude, known  a«  tho  Missouri  Com- 
promise Line,  a.s  delined  by  tho  eighth 
section  of  an  a<'t  cnlillcd  'An  act  to 
authorize  the  people  of  Missouri  Ter- 
ritory to  form  a  Constitution  and  State 
Government,  and  for  the  admission  of 
such  Stale  into  the  I'niou  on  an 
equal  footing  with  the  origin.il  States, 
and  to  prohibit  slavery  iu  certain  ter- 
ritories,' approved  March  0th,  1820,  be 
and  the  same  is  hereby  declared  to 
extend  to  the  I'acillc  Ocean,  .and  tho 
said  eiyhlh  section,  together  wilh  tho 
Compromise  therein  alTected,  is  hereby 
revived  and  declared  to  be  in  full  force 
and  binding  for  the  future  organization 
of  the  terriluries  of  the  Initcd  St.ites  in 
the  same  sense  and  with  tlie  same  un- 
derstaniling  wilh  whii.'h  it  was  originally 
adopti'd."  'I'he  ameiiduunt was  carried 
in  tlie  Senate  by  a  vot(!  of  ii-\  lo  21,  but 
defeaud  by  a  vote  of  8J  to  121  in  the 


House.  The  Senate  receded  from  tin  ir 
amendment,  and  passed  Ihe  House:  liill, 
with  an  uncondilional  reslrirtion  agaiii>i. 
slavery,  by  a  voti^  of  20  to  'A'>.  Evi  ry 
Soutliern  senator  present  voted  f  rr 
the  amendment  in  the  Senate,  and  hut 
seven  Xorihern  niembers,  in.lndini; 
Douglas  and  Dickinson  from  New 
York  and  Cam])l/ell  of  Pennsylvania, 
joined  it.  All  those  votes  against  it 
iu  the  Senate  were  from  tho  North. 
When  tlie  aniendincnt  w.as  before  the 
House,  on  Aug.  llth,  all  of  tho  eiglily- 
tvvo  votes  in  its  favor  wero  from 
the  South,  except  four.  Kviry  one  of 
tho  iJl  against  it  was  from  tho  North, 
except  that  of  Houston  of  Delaware.  ( (a 
the  linal  vote  in  the  Semite,  every  North- 
ern senator  voted  yea,  and  every  Somli- 
irii  senator  nay,  except  Benton  of 
Missouri.  It  w.is  claimed  by  the  S.mili 
that  "this  was  a  ccnnpleto  and  tot.-il 
abaniloinnent  of  Ihc  Misscmri  Com- 
promNc  so-called  by  both  Houses  of 
Congress.  It  met  its  linal  doom  on  thw 
12th  of  August,  1848.  On  that  (hiy  it 
fell  and  W.1S  buried  iu  tho  Senate,  wliere 
it  had  originated  twenty-eiuht  years  hp- 
fore,  but  had  never  <inieted  tho  ahe- 
litionists  a  day.  It  fell,  too,  not  hy 
Southern  but  by  Northern  men.  Tho 
very  Slates  lo  which  it  owed  its  pa'er- 
nity  struck  the  last  decisive  blow," 
(Stephens,  Constitutional  View  of  ih') 
War  between  the  States,  vol.  ii,  pp.  \'i, 
1711.) 

"  Act  of  May  ."iO,  1854;   10  Si.  iit  I... 
283. 

"  Constitution,  Article  IV,  Section  3. 


!j;i(;.] 


mSTOItV    or    SKC'KSSION. 


103 


tccluiii  to  private  proiji'ity  I'oiliadc  Uii;  ciiaetment  of  a  hnv  \vlu<  Ii 
iiHik  away  a  iiuin's  property  in  slaves  wlieii  he  removed  tliein  lo 
till-  ['enitories  ;  and  that  the  ehiuse  in  the  ("oustitutiou  upon  which 
I  lie  N'orlii  relied  merely  ('(jnlVrred  jjower  to  make  regulatioiiH 
(■(iMceriiiiii;  the  use  and  disposition  of  the  property  wliieh  tlie 
liiili'd  States  liad  in  lands  and  ehattels.  and  gave  no  power  of 
niiural  legislation.  A  eompromise  was  the  doctrine  of  s(iuatter 
sovereignty  formulated  by  Stephen  A.  Douglas,  according  to 
uiiiili  the  people  of  each  Territory  liad  the  absolute  right  to 
ilcterniine  whether  slavery  should  be  allowed  or  forbidden,  and 
Cdiigrt'ss  had  no  power  to  interfere  with  them."'  Tiie  Supreme 
{'iiiirt.  in  the  Dred  Seott  Case,  decided  by  a  majority  of  six  to 
tun  that  Congress  had  no  power  to  forbid  slavery  in  the  'I'enito- 
ii(  s.  'i'lie  dissenting  oiiinion  of  Judge  Curtis,  iiowever,  was  clainu  I 
liv  tiii^  North  to  b(!  c<n'rect ;  and  it  was,  in  accordance  with  his 
virws,  asserted  that  this  ruling  was  no  part  of  the  decision  of  the 
Court,  since  l>y  sustaining  a  plea  to  tiie  jurisdiction,  the  case  had 
liri'u  decided  before  the  (luestion  arose.'"  Abraham  Lincoln  had 
vigorously  repudiated  the  decision;  and  there  WiW  little  doubt 
i>ut  that  the  North  would  refuse  to  respect  it  and  seek  to  liave  it 
(iverrulcd.  Thus  stood  the  (jucstion  at  the  time  of  the  election 
of  Lincoln  to  tiie  presidency. 

^  iiO.  History  of  Secession. 

The  election  by  the  Northern  States,  for  Piesident,  of  a  northern 
man  who  had  said  that  the  L^iiion  could  not  "endure  permanently 
h;ilf  slave,  half  free,"  '  and  had  publicly  declared  liis  refusal  to 
aicpiiescc  in  the;  opinion  in  the  Dred  Scott  Case,  that  slavery  could 
mil  lie  constitutionally  excluded  from  the  Territories,  convinced 
liic  South  that  new  safeguards  were  necessary  for  the  j)reserva- 
tien  of  their  peculiar  institution.  IJcnewed  threats  of  a  dissolu- 
tion of  the  I'nion  wcii!  leceived  in  such  a  manner  by  the  North 
as  to  make  it  clear  that  a  majority  of  the  j)eople  were  resolved 
to  submit  to  no  further  aggressions  by  the  slave  power.  'Die 
.success  of  South  Carolina  more  than  a  (|uarter  of  a  ceiituiy  be- 


'«  Dcbiiips  bi'twopii  Linculn  ;uui 
Iliiiiiilus,  pafsiin. 

"Pii'il  StMtt  i).  S;imlfi)rd,19  How.,20;!. 
TIks  case  ia  iliacusscd  at  length,  infra. 


§  DC).  1  LiiuMilu's  S|)cc(h  liofdrn  tho 
llepulilli'jinSliiliiConvoiilionatSiinng- 
Hold,  111.,  Juno  17,  1858. 


1i)4 


HISTOKY    or   SKCr.SSION. 


[cilAl-.  It. 


f(HL'  mado  it  seem  i)ro)iiil)le  lliiit  olliciiil  uction  on  llic  pint  of 
the  sliive  States  wtjiild  conijicl  coiiccssioiis.  Tlii'  ivsiilt  of  tlii' 
prt'sideiitiiil  eloL'tiuu  liiul  proved  tliiit  iiotliiiij^  else  eouUl  do  so. 
A  junto  of  nieniburs  of  (Onirii'ss  fmni  tlie  South,  in  co-operation 
witli  tlic  other  leaders  of  their  eonstitneiits.  planned  a  denionslni- 
tion  whieh  they  i-esolved  slionld  he  more  imposing,',  and  they  ex- 
pected would  Ix)  no  less  effeetivo.  than  the  work  of  Calhoun  and 
Ilayne.  On  Deeendjer  14tli,  18(10,  they  issued  a  jtulilie  address 
to  their  constituents,  in  wiiieh  they  saiil  "  that  the  honor,  safetv, 
and  independence  of  the  Southern  people  re(pure  the  or^^anizatiim 
of  a  Southern  Confederacy,  a  residt  to  In^  olitaiiuMl  oidy  liy  sepa- 
rate State  secession."  2 

'{"lie  Palmetto  State,  the  location  of  which,  surrounded  by  slave 
States,  made  invasion  from  the  North  ditlicnlt,  again  took  the  lead. 
On  Decendier  iOtlu  a  convention  of  the  people  of  South  Carolina 
unanimously  adoj)ted  the  following  ordinance  of  secession:  — 

"An  ordinance  to  dissolve  llie  I'nion  hotweeii  the  State  of  South 
Carolina  and  other  States  united  witii  lier  under  the  compact  entitled 
' 'J"he  Constitution  of  tlie  I'nited  States  of  America.' 

"  We,  tlie  People  of  the  State  of  South  Caiiilina,  '.n  Convention  iis- 
seinhled,  do  declare  and  ordain,  and  it  is  hereby  declared  and  ordiiincd, 
that  the  Ordinanen  adopted  by  ns  in  Convention,  on  the  Twenlv-thiiil 
of  May,  in  the  year  of  our  J.ord  One  lliousiind  seven  hundred  ami 
eisihty-eiglit,  wliereliy  the  Constitnlion  of  the  Cniled  States  was  rati- 
fied, and  also  all  other  Acts  and  parts  ot'  Acts  of  the  (ieinial  Couslilii- 
tion,  are  herehy  repeah-d,  and  the  I'nion  now  siiljsistini;  lielween  Soutii 
Carolina  and  other  Slates,  under  the  name  of  the  Pnited  States  of 
America,  is  hereby  dissolved." 

Action  l)^-  a  convention  rather  than  by  the  legislature  was 
due  to  the  fact  that,  as  the  jieople  through  a  convention  had 
originally  ratified  the  Constitution,  it  might  bavi^  been  contended 
that  t!i(!  legislature  had  no  such  authority."  The  people,  however, 
were  considered  the  sovereign  power  of  the  .State.  The  ordinance 
was  followed  bj- a  declaration  of  independence  diawii  with  sttidied 
imitation  of  the  original,  to  which  it.  referred  in  its  preamble,  and 

^  This  was  Blunod  by  aljout  liuir  tlio  (Rh(i<lc8,  Itistory  of  tlip  TInitod  States, 

niendicrs  of  the  Southorii  deli'ftatious  vol.  iii,  p.  17S). 

in   lK>tli    houses,   inoludiu;^  Ji'lTcisoii  a  y^u    th(>    language    of  Madl.^ou, 

Davig,  Slidell,  Benjamin  and  Wigrall  (luotcd  Hupru,  §  19. 


:;.;.] 


8KCESSION    <>I'    SOUTH    CAIiOl.lNA. 


l(i,0 


: ,  ..■; 


fidiii  wliicli  was  cDpii'd  its  ctoiirhisioii.  Tin-  Ijoily.set  forth  tlii^  iIcm- 
iiiac  llial  till'  ('(lusliliitioii  was  a  coii^iatt,  a  lii'isuli  of  wliicli  liy  one 
[laily  (lissolviid  tlie  otluMs  from  tlicir  ohlifratioiis.  li  ici;itf(l  tliosu 
ilaiist's  iiisi'itcd  l)y  way  of  i'oiii[)roiiiis('  in  tin:  ( Oiistitiitioii  for  llic 
|ir(itiM'tii)ii  of  tiiL'  rif,'lit  of  property  in  man  ;  and  enipiiasizial  tlic  jjro- 
visioii  for  lla'  rctnni  of  fufxilivc  slaves.  As  infractions  wvvv  set 
fiii'th:  tlie  ■.  nactineiit  liy  liftcen  Xortliern  States  of  jiersoiial-lilierty 
laws,  wiiicli  iilerfeicd  witii  tiie  ojieration  of  the  Fii<,'itive  Slave  law  ; 
till'  refusal  of  (heir  ollieei-s  to  enforce,  and  of  their  j)eople  to  ohey, 
lliis  constitutional  mandate;  the  denial  of  the  right  of  transit  for 
slaves;  and  the  refusal  of  two  State  executives  to  deliver,  on 
(lumand  of  the  executives  of  Southern  States,  persons  accused  of 
liavinj;-  connnitled  crimes  in  connection  witii  attempts  at  forcible 
ciiiainipation.  Complaint  was  made  of  tiu;  forinaticii  of  a  scc- 
tiiiiial  p:irty,  which,  "aided  in  some  of  the  States  liy  elcvatiiiLf  to 
citi/.cuship  persons  who.  liy  the  supreme  law  of  the  land,  are  inca- 
palile  of  becoming  citizens,"  had  elected  {'resident  a  man  whose 
iipiiiions  and  jiurposes  were  hostile  to  slavery. 

"  It  has  aiinoimced  that  the  South  shall  be  excluded  from  the  coiiimoii 
Icnitory ;  that  tiic  judicial  tribunals  shall  liecoiiie  sectional,  and  that  a 
war  must  be  washed  against  slavery  imtil  it  shall  cease  throughout  the 
rnili'il  States." 

In  conclusion  it  was  declared  that  the  I'ldon  was  dissolvtd  ; 
and  South  Cai'olina  had  resunu'd  her  ]iosition  among  "the  natiiDis 
iif  ilie  wiuld  as  a  free,  sovereign,  and  indc])endcnt  State."'' 

Tlic  day  following  the  action  of  the  South  Carolina  conven- 
tiiiii,  the  representatives  of  that  State  retired  from  their  seals  in 
('oiigress.  On  January  5th,  IHOI,  a  caucus  of  the  senators  of 
seven  Southern  States  reecnnnieuded  to  their  constituents  iiiuue- 
(liate  secession  and  the  organization  of  a  ru'w  Confederacy.'' 

*  Tliis  was  the  work  of  R.  15.  Uhott.  Arkansas,  wore  absent  from  tin'  ineet- 

lUhddoK,  Hislory  of  Uii'  riiitetl  States,  ing:    •' HivoIitiI,  Tliat,  in  uui- ojiiiiiou, 

\'<\.  ill,  p.  2U1).   It  is  piintoil  at  lengtli  oaeli  of  the  States  should,  as  soon  as 

li.v  I'resliin,  Doiunients  lUustrutivoof  may  lie,  soccilo  from  llio  I'nion.     Re- 

Arrii'iiian  History,  p.  'MT).  Holvcil,  Tliat  provision  sliowUl  be  made 

"  Thn   following;    resolutions  werr  for  a  convention  to  orj;aiiizo  a  con- 

Milu|iled  by  the  Senators  of  (iporgia,  federaoy  of  the  soeedinn  States:  the 

I  lorida,  Ahibama,  llis^is'^ippl,  Louisi-  convention  to  meet  not  lat'-r  tlim  tiie 

ana,  Texas    and   Arkansas.     Messrs.  l.'itli  of  February,  nt  llio  i;  I. v  ^i' Mont- 

Toninbs,  of  Georgia,  and  Sebastian,  of  gomeiy,   in    the    State     it  Alabama. 


ir,6 


HISTOIIV   (iF   SECKSStON. 


[CIIAI'.  II. 


The  second  State  to  secede  was  Mississippi,  wliich  adojited  nn 
ordiniince  of  secession,  .Fann;iiy  Dtli,  18(51.  Florida  followed  on 
the  lOtli,  Alabama  on  the  11th,  (ieorgia  on  tiie  10th,  and  Louisi- 
iiina  on  the  28th.  Kaeii  of  tiiese  States  acted  throuj^h  conventions, 
and  in  none  was  the  vote  nnaninious.  In  ?>lississippi,  Ala])ania, 
Georgia,  and  Louisiana,  propo';itions  to  submit  the  question  to  a 
direct  poj)nlar  vote  were  defeated.  The  'I'exas  convention  ))asse(l 
au  ordinance  of  secession  February  1st,  and  on  the  Tth  submitted 
it  to  the  people,  a  majority  of  whom  adopted  it  on  the  2;id.''  All 
these,  like  South  Carolina,  were  separated  from  the  fr(;e  by  th(! 
Lorder  slave  States,  ujion  whom  they  relied  to  preserve  neutrality 


Riwiilv  d,  Tlmt,  in  viow  of  tlio  hostllo 
lo^isl.ilion  thill  is  thnMtencil  at;iiinst 
tho  seoediiiK  Stntps,  nnd  wliich  may 
be  consiunmated  before  tho  4tli  ot 
March,  wo  asli  iiistrurtiona  whether 
tho  doleisations  aro  to  remain  iu  Con- 
press  until  that  (bite,  for  tlie  imrpOKe 
ot(iefealin;^su('ii legislation.  R  milvi'd, 
Th:'t  11  coinmittee  be  ami  iiro  hereby 
appiiintod.  eonslstiug  ot  Messrs.  Davis, 
Hliiloll,  and  Jlallory,  to  carry  oit  tho 
objei'lsof  this  niceliut,'."  (Davi.s,  Kiso 
and  F.ill  ot  tlio  Ci)nl'cderato  (roveni- 
menl,  vol.  i,  ji.  '204.  note). 

"  Mil'herson,  Hisloiy  of  tho  Re- 
bellion, pp. '2(1.  Theothorordiiiancea 
of  secession  were  similar  iu  siilistan(^o 
to  that  ot  Houlh  Carolina.  The  Gcor- 
Khi  onliliance  coru'luded  by  the  decla- 
ration, "that  tho  Stale  of  Georgia  is 
in  tho  po-session  and  exercise  of  all 
those  lights  ot  sovereignty  wliich  be- 
long ami  aiiix^rlain  to  u  Fi'ceand  ,Sove- 
reigTi  Sialc"(S'i.iplr'ns,  0>n^litn^ional 
Vi'wof  tho  War  betweivi  the  Stales, 
vol.  ii,  11. nil).  WhcnTeime-see  llnally 
Becede.l,  her  Legislature  iidopted  a 
declaration  ot  imicpendence  in  wliii'li 
bIio  claimeil  the  right  of  revol'ition. 
Tlie  so-called  "Sovereignty  Conven- 
tion,' in  Kentncliy,  went  through  a 
;-imilai  f.inn  (soe  infru,  over  note 
lid).  Tlio  Mlssissl]ipi  convention 
ari(>ptod  a  "Doclaralion  of  tin  imme- 
dlnto  causou  which  Induce  and  justify 


tho  secession  of  the  State."  Tho  pro- 
amblo  to  tho  Arkiin.sas  ordinaneo 
inonlioned  as  ono  of  the  movint; 
causes,  Lincoln's  call  for  troops  to  at- 
tack tho  seceded  Stales  (MclMier- 
son,  History  of  tlie  Ueliollion,  pp.  4. 
5,  8 ;  Khodes,  History  of  tho  Uuilcii 
Slates,  vol.  ill,  pp.  274,  404;  Kay 
and  Nicolay,  vol.  Iv,  p.  2(tl).  On.Iaii. 
fi,  IHOl,  Mayor  Fernando  Wood  mi- 
dressed  a  message  U<  tlio  Comincin 
Coun'il  of  New  York  i  ity,  in  which  Im 
sniil  tliat  a  dissolution  of  tlio  Union 
into  tliree  or  more  republics  seemed 
inevitable;  that  it  was  "folly  to  di.<- 
gniso  tho  fact  that,  judging  from  tie; 
past,  New  York  may  havo  moro  caiisn 
ot  apprehension  from  the  aggressi>ii 
legislation  of  our  own  State  than  tnim 
external  dangers";  and  that  "amiil 
tho  gloom  which  tho  present  nnd  pio.-- 
poctivo  condition  ot  things  must  <Mst, 
over  the,  country.  New  York,  as  a  h'rri' 
Ci'ii,  ma\  shed  the  only  liglit  and  hope 
o[  a  tuliin!  reconsi ruction  of  our  o.'ice 
blessed  Confederacy."  (McPheixiii. 
History  of  the  liebdlion,  pp.  12  It. 
lUiodes,  in  his  History  ot  the  Unilcl 
States  (vol.  ill,  p.  ;ili'J),  nuoles  a  let- 
ter to  JelTc'rson  Havis  liy  Forsytli,  ii 
Contedorato  Coininissioner.  datcil 
.\prll  4,  1801,  in  which  ho  says  tlml 
thoro  was  then  a  wldesprond  eon-pi- 
racy  in  New  York  for  a  sccpssion  ami 
its  establlshmout  as  a  free  city. 


j  •"■'•] 


THE    BOKDKU    .STATES. 


1(17 


at  Iriist,  and  to  protect  them  from  the  North  pending  the  negotia- 
ticiii;  tor  the  compromise  wliicli  tliey  expected  to  obtain.  Thiy 
were  fortilied,  morcov^er,  by  an  opinion  ',>"n  by  tlie  Attorney- 
(u'lieral,  .ludgo  Jer.;.  S.  lilaek,  to  I'resiih'nL  (Jiicliaiian,  tliat  under 
existing  kws  the  President  eould  not  nse  )ree  against  them,  ex- 
(•ri)t  to  defend  iittaeks  upon  tlie  proj)i'rty  of  tlie  government,  and 
that  tlic  United  States  liad  no  power  under  tlie  t'onstitution  to  wage 
Avnr  upon  one  of  the  States  of  which  they  were  composed.'  In 
(•use  of  war  tliey  knew  that  tlie  border  States  nuist  be  at  first  the 
l);ittle-gn)un(l ;  and,  many  of  them  believed,  what  was  said  by  one 
111'  tlii'ir  lefiders,  that  their  citizens  might  "  go  home,  raise  cotton 
and  make  nion(!y,"'  leaving  the  discomforts  of  the  situation  to  their 
Irss  fortunate  allies.*'  The  border  slave  States  —  ^Iai-ylaud,\'irginii;, 
Kentucky,  an<l  Missouri  —  understood  the  perils  of  their  situation; 
and  one  at  least  of  them,  Missouri,  had  some  time  before  made 
preparations  to  maintain  neutrality  in  case  of  hostilities  between 
tlie  States  who  surrounded  her."  Sucli  of  their  legislatures  as  were 
then  in  session,  early  in  iStJl,  either  declared  neutrality  or 
re(oninu'nd(Ml  sucii  a  compromise  as  the  others  were  anxious 
to  obtain.'"  Arkanias,  Touiessee,  and  North  Carolina,  although 
not  on  the  border,  were  more  exposed  than  those  nearer  the  centre 
of  the  slave  States,  and  accordingly  hesitated.  The  convention 
(it  Arkans.is  defeated  the  oi'dinanee  of  secession.  March  iSth,  by  a 
in.ijority  of  four;  submitted  the  (question  to  a  vote  of  the  people 


'  (llilnii)ii  of  Atlornoy-rrrnornl  Blade, 
Nov.  lilt,  18(10;  i)  (»|l.  A.  (r.  r)l(!.  It  is 
s:iiil  liy  .r(>n'i>rs(m  Davis,  tliat  two 
mi'iiil.i'rs(if  llinSiipreninCiiart:,  .Idd^io 
(■:iiii|'lii'll  o[  Louisiana,  aud  .ludge  Nol- 
suM  or  Xi>w  Yorlc,  cxiircssed  a  similar 
virw  Id  rrosidoiil  Lincoln.  (Ri8»  and 
Kill!  of  111!'  Cimfi'donicy,  sol.  i,  pp.  207, 
'Ji'iSi.  SiM!  also  Cainpli(>irs  address  lo 
tlii'SoiiUicrn  llisloiical  Soi'loiy.  The 
.Miiiiidiiess  of  tlii'sii  vio\v»  will  bo  con- 
siili'iivl  i'1-.i'Uliei'o. 

'  'r:\iHroiuarU,  uliich  \vasaili-ilnit(?d 
to  IIouoll  t'olib  of  CoorRia,  had  cmi- 
siiii'ralili'  iiillneni'O  In  taniinf;  K^mi- 
tiii'ky  U)Wiirds  tho  Nortlicru  bidu 
^Shalor's  Keutufky,  p.  iV.)). 


»  In  IS.'i")  and  ISofi,  Mis.=.0(iri  loRis- 
latod  1o  [irovido  means  for  raising 
flfl,y  tl'.onsand  voliintciMs,  to  Im  iisod, 
it  was  said  by  ll;o  iiroiiiotcr,  in  "  [mv 
v(mtinK  onr  Noi-lbern  and  Southern 
brethren  from  Hying  at  each  otJier's 
throats,  as  they  probably  will  do  at 
the  n(!.xt  presidential  (>loction  in  IS.'ifi, 
or  passing  that,  certainly  in  ISfiO. 
unless  the  border  .Slates  take  action 
siieli  as  this  to  keep  the  (loacc." 
(CiUT's  Missouri,  pp.  liOll,  :!()1|. 

»|  MclMier^oM,  HIsloryof  thoHobcl- 
llon,  [ip.  I  11.  Tlio  soparaUi  ai'lion 
of  each  nf  lliese  Slates  is  d(>scribi)il  in 
a  subsoiiueut  pari  of  lliia  seel  ion. 


1C8 


HISTOllY    or    SIX'KSSION. 


[CHA1>.  11. 


ill  lilt,'  foUowiiif^  Aiif,nisl ;  iiiiil  ])i'(iviili'(l  for  the  iippoiutiiiciit  df 
delegatc'K  to  an  iiiteriiiL'diate  convciition  of  the  Ijorder  States,  in 
which  eategory,  on  aceouut  of  liev  almtnient  on  tlie  Indian  'IVr- 
ritory,  she  claimed  to  belong.  In  Tennessee,  February  8th,  ami 
North  Carolina,  February  28th,  a  majority  of  the  people  voted 
against  a  convention."  In  the  latter  State  by  a  majority  of  only 
six  hundred  antl  sixty-one.''^ 

The  ri'iiresentatives  of  the  seceding  States  in  the  House  nf 
Keprcsentalives  retii-eil  from  their  scats  witliout  ceremony,  although 
in  some  cases  tliey  gave  written  notice  to  the  sjjeaker.''  A 
ruunbcr  of  the  Senators,  howevei-,  with  the  dramatic'  instinct  of 
th(^  Soutlici'ii  ])eoi)le.  seized  the  ojijiortuuity  tn  make  a  scene  in 
their  assumed  cai)acity  as  andjassadors  from  suvereigu  States  liv 
valeiliitorii'S  which  aunouni'cd  llu,'  reasons  for  their  retirement  in  ;i 
manner  well  calculated  to  impress  upon  the  pt'oph'  of  the  North 
the  determination  of  the  South  and  the  scr'uuis  character  of  tlir 
crisis  reachi'd." 

The  United  States  judges  and  diilrict  aitorneys  resigned  jvs  soon 
as  their  States  seceded;  bui  the  postnuisters  did  not  before  (lie 
bombardment  of  I''ort  Sumter.''  So,  there  was  hardly  any  chaiiL;'' 
in  the  habits  of  tlu>  people  until  thai  time.  ^V  congress  from  the 
seceded    States    met.    l'"ebruary   4th,    at     .Montgomery.    Alabama: 


II  MrlMicrson,  History  of  {h(\  ItiO.cl- 
lion,  pii.  4, .") ;  StcplKMiw,  Cousliliilinnul 
View  of  tlm  AV.-ir  hotwooii  tlio  Hliitos, 
vol.  ii,  pp.  ;)(;;3-;ii',(;. 

'-Il.i.l. 

"  ]!liiiii(!,  Twenty  yrnrs  ill  Con- 
gri'ss,  Vol.  i,  pji.  21:i,  1:41!.  .John  K. 
ISdulliiny  of  I.(iulsiiin;i,  rcmaiiiL'd  lnyal 
iinil  rolaincd  liis  si'.U  in  tlic  House 
(Niroliiy  iinil  Hay,  Lifo  of  Liinolii, 
vol.  iv.  p.  i;).jj.  Wih'fall  of  TcxK.s,  ul- 
thoiii,'!)  lii>  openly  revoinnienitnl  t,- 
epsMloii,  rotniiieil  liiti  seat  in  tin)  iSeii- 
atu  liotli  tlii'oii^lionl  Il.n'han::irs  toriu 
and  at  the  .spoeiid  session  ealled  liy 
Lliieola  iu  Manli,  IHUl  illiid.,  pp. 
1!)5,  lllfij.  On  .Inly  Ii,  afiei'  he  had 
loft  the  St>:i,!;  e,  lie  w.is  e.xpelleil 
(Tafl'rt  Seinilo  Kleeiicn  (\ises  eontiu- 
uod  liy  Furlier,  p.  711.     fiuo  infra.) 


1'  Tlio  Speerh  of  JelTerscin  Diivis, 
.Tim.  21,  which  was  diirnilied  and  up- 
pnipri.-ite  to  the  occisidu,  is|irinli>d  ia 
Tho  Iii.se  and  Fall  it  Uu^  Conl'ciler.iie 
{iovi'rnnieni,  vol.  i,  i)p.  221  22ri.  Kef- 
ereiii  e  has  already  liecn  niadu  to  the 
SpiM  cli  of  .Iiiiiih  P.  Benj.iu.in,  mqira, 
§12,  no:i<  21.  A  Bumiiiary  of  all  cf 
ihein  is  made  hy  Ulaiue.  Tweuly  Years 
in  I'unKrcsiH,  vul.  i,  pp.  211-251. 

1.U2  St.  at  h.,  p.  1,-1 1:  Kllode^, 
History  of  the  t'niiod  .S!alen,  vol.  iii, 
p.  1 12.  Mr.  Jiisi  :••.•  WuyiK!  <ii'  OoorKiii 
retained  liiH  Heat  in  llie  Supreme 
Conrl,  of  till'  tiniled  Siate.-i  until  liis 
deatli  iu  1H(>".  Jlr.  .Insiice  (.'ampin  II 
of  Louisiana  n'si.L'ned  .md  liocaiiio  as- 
hisiani  se(.iolai'y  of  war  iu  the  Cen- 
tedcnu'V. 


CIMTTKNDICN    UICSCM-rTIOXS. 


i(;i> 


§3ii.] 

uilopluil,  on  the  8tli,  a  jji'ovisiunal  ( 'oustiUilion  ; '"  on  tlu'  lollowin;^ 
(lay  elected  president,  JetTeison  Davis  of  Mississipjji,  and  viec-presi- 
ilciit.  Alexander  II.  Stephens  of  (icoryia,''  of  wlioni  Ihe  lulle:-  had 
opposed  .secession.  l)Ut  after  defeat  (nist  his  lot  wilh  timl  of  iiis 
Stite;  ^^  continued  in  force  and  oHice  until  fnrtiiei' lej^islaliou  all 
statutes  of  the  L'nited  States  not  inconsistent  wiili  tiie  uvw  Consti- 
lution,'"  and  all  Federal  ollicers  wilh  similar  functions  iu  the  Con- 
fcdeiacy;^"  authorized  the  appointment  by  the  President  of  a 
connnission  of  three  persons  to  ijc  "sent  to  tlie  government  of  the 
l'nited  States  of  America,  for  the  purpose  of  negoliatino-  fi'iendly 
relations  between  that  government  and  the  Confederate  Slates  of 
America,  and  for  the  settlement  of  all  questions  of  disagreement 
between  the  two  governments,  upon  principles  of  right,  justice, 
ecjuitv,  and  good  faith;"-'  and  shaped  all  their  proceedings  so  as 
to  fai'ilitate  a  return  to  the  Union  without  friction  upon  a  eom- 
pliaiice  v.ith  their  demands.^ 

It  had  been  wisely  determined  that  KentnelvV  and  Virginia 
should  lead,  as  in  the  past,  to  obtain  concessions  to  the  South  under 
the  plea  of  the  danger  of  disruption. 

In  imitation  of  his  predecessor,  Ifeiu'y  Clay.  John  J.  t'rittendv'n, 
of  KeMtucky,'^'  introduced  into  the  Senate,  of  whieii  he  was  the 
old(st  member,  a  proposition  for  amendments  to  the  Constitution, 
u]ion  the  adoption  of  which  the  Slave  States  were  willing  to  remain 
in  the  Union.'-"     These  re-established  the  iSIissouri  (compromise  by 


'«  Davis,  ^a^i(!  nnd  Fall  of  tho  Con- 
fciloralo  (iovornnu>nl.,  vol.  i,  p.  2'2U. 
It  is  (lisciisHOil  infra,  §  37. 

1"  11)1(1.,  i>.  2;iU. 

''  SlopluMm,  Constitutional  View  of 
llin  War  between  tlio  Htatos,  vol.  11. 

pp.  'ii;;)-;!!)',). 

"  Coufodenito  Statiiti'S  at  Larj;(<, 
I'lmisioiiiil  (joviM-nmunt,  p.  27. 

-'  I!ii.!..  p.  27,  2S. 

-1  Iliiil.,  p.  !t2. 

■■'-  hifrc.  fj  :t7. 

-^  Ai'cordlii}^  to  (ho  Now  York  ilcr- 
iil'l,  llicse  weri)  drawn  by  .loliii  C. 
l'-n''i;lnrl(lKo,tlu't;Vici'-I'n>Hld('nt,  and 
M.  ('.  .Toliuson  (McPlKMvoa,  History 
ot  llie  lleboUioii,  p.  70), 


"  Tills  is  inanifiwl  from  tlii^  action 
of  Virginia,  wliic-ii  was  <'vidt.>nliy  pro- 
nrrauRi'd  ;  the  minority  report  to  the 
Hoiiso  liysoven  ropri>?i>ntativi  sof  Uio 
Siavo  Stall's,  who  rci-omnii'mli'd  tlie 
(/rilt(>nil('n  Kosolnlions  (llel'licr.-^on. 
History  of  tho  l{i'ln\illon,  p.  58|;  niul 
thi>  ad(iros.s  ot  tho  Virginia  df^lc^ration 
to  tlu'ir  coiistltiiiMita  upon  tho  re- 
jection ot  these  resolutions  (ibid.,  pp. 
Bil,  U)).  Toombs  of  (tcorgia,  who 
know  liow  to  donumit  iiM>re  tluin  lio 
was  willing  to  accept,  in  hlssiM'o.'h  In 
tlio  Hi'uatc,  Jad.  7,  l.siil,  laid  down  ns 
condlfions  upon  tho  romr.ncnco  ot 
(Ji!or:;la  in  tiie  T'nion,  that  slavery 
should  bo  autUorutd  and  protected  In 


17(1 


HISIOIIV    rH''    SKCICSSION. 


[CU.W.  II 


f(ii'l>i(l(liii^'  slavory  ahovc.  and  t'stahlisliiiiL;-  il  witli  a  ri[r],t  In  pri). 
ti'ctidii  as  j)nii)L'rty  by  tlK'ir  fjovcriuiitjiits  ht'low,  tliu  paralk'l  of 
lliiity-six  lU'gi'i'cs  tliiit}-  miiiiites  in  all  the  Terrftorifs  tlicii  inM  di 
tluTcaftcr  ac(iiiir("(l,  until  tlu'  admission  of  eacli  as  a  Sialc.  wlirn 
Congress  was  forliiddcn  to  inijiosc;  any  condition  affrctinj,'  slavery. 
'I'licv  t'xpressly  provided  that  "Congress  shall  have  no  power 
to  interfere  with  slavery,  even  in  those  phiees  under  its  exeliisivc 


!:U  TiMTitorios  of  the  United  States; 
mill  that  more  efflclent  iirovisions 
shoulil  lio  niiiile  for  tlie  rcturu  uf 
fiiu'itive  kIiivos  and  erliuinals  against 
.■-lavo  ppiiierty.  and  for  tlio  imnisli- 
inentof  those  wlio  sliould  aid  or  abet 
ins\irreclion  in  another  Slate  (Blaine, 
Twenty  Years  in  Conjiress,  vol.  I, 
pp.  21i'>,  217).  Ali>xauder  H.  Sli'plii'nw, 
tiie  Vii'O-Presideut  of  tlie  Confederacy, 
say.s,  in  hisConstitntioiial  View  of  the 
War  between  thoStates,  vol.  ii.  p.  321 : 
"The  trnth  is,  in  my  j\i<lgnient,  the 
wiiveriiig  seale  iu  Gei)rRin  was  turned 
1)y  a  8(  rtiment,  the  Ivey-note  to  whieli 
was  K'^'n  '"  tl'"  words — 'We  ean 
in.'ike  better  terms  out  of  the  I'nion 
than  in  it.'  It  was  Mr.  Tlioni.as  11.  K. 
Cobb  who  gave  utterance  to  this  key- 
nolo,  in  his  speech  before  the  Legis- 
Inlure  two  days  before  my  address 
belori'  the  same  body.  This  one  idea 
did  m<ue,  in  my  opiiuon,  in  carrying 
the  Stale  out,  than  all  the  arguments 
anil  eliii|uence  of  all  the  otiiers  eom- 
liine.l.  Two-thirds,  at  least,  of  tiiose 
who  voted  for  the  Ordinance  of  Seee'^- 
siou,  ilid  BO,  I  have  but  little  doubt, 
with  a  view  to  a  more  eeitain  Kc-lor- 
mation  of  tlie  I'nion."  And  again 
speaUiiig  of  Lincoln's  proclamation, 
calling  for  tn.ops  ( ibid..  \>.  ',\~}i\    : 

'•  The  effiM't  of  this  upon  the  iiubllc 
mind  of  the  Southern  States  cannot 
be  described  or  even  estiniuted.  The 
slioclv  was  not  unlike  that  produced 
by  great  convulsions  of  nature  .  .  .  tho 
uphea\ii.gs  and  rocklngs  of  the  earth 
Itself!    It  was  not  that  of  fright.     Far 


from  it!  Hut  a  [irofound  fi'eling  of 
wonder  and  astonishment !  I'p  to  //lis 
lime,  (I  mnjorili/.  I  Ihiiili,  of  eviii  llitme 
1(7(0  bail  farnriil  the  iidliri/  i>f' Krivmiim, 
had  iIdiio  ko  uiiiIi  r  the  liilii'fiiiul  fonvic- 
lion  that  it  ifitn  tlir  Hiirfft  trdi/  of  mrur- 
iti'l  a  rcdrrnH  of  ffripriinn't,  and  nf 
liriiiiiiiiij  the  lu'drnil  tiorirnmciit  hmk 
to  conxtitiitiDniU  prinriiilvt.  Jl.iiiy  ut 
them  indulged  hopes  that  ii  Kc-roriii;i- 
tion,  orn  lle-constructiou  of  the  Union 
w.iuld  soon  take  place  on  the  basis  of 
tho  new  Montgomery  Constitution, 
and  that  the  Union,  under  this,  would 
be  continued  and  strengtheneil.  or 
made  more  perfect,  as  il  had  b(>en  in 
178!),  after  the  wilhdrawal  of  nine 
States  fiiun  the  llrst  Union,  an  1  tlio 
acloiition  of  the  Constitution  of  ITS". 
This  proclamation  ilispelled  all  sinli 
hopes."  He  says  again  that  wln'n 
Soutli  Carolina  att.icked  Fort  Sumter, 
Lincoln  should  have  e.illed  a  Congrc-? 
of  the  States  wlii<'li  had  not  seccied, 
to  consult  them  upon  his  action  la  llie 
matter. 

"I  will  now  go  further,  and  iill 
you  wh.it  1  think  tho  Congress  '.f 
States  ought  to  have  done  undei  tli'' 
eircumstaue(>s.  if  they  had  beer,  .-' 
(■(.nveneil  by  liim.  They  shouhl  1' 
called  a  Convention  of  all  the  Sti. 
with  a  view  to  a  readjust  incut  of  liicir 
relations.  If  tho  sce(_ded  St.ites  li.i' 
responded  to  that  call,  well  and  goo  I. 
In  that  event  I  have  but  little  doiilit 
that  tho  result  would  have  been  iv 
peaceful  adjustment  of  all  matters  in 
contio\erHy,   by   tho    dendict  State.-* 


CUITTKNDE 


KKSdlA'TlONS. 


1,1 


iiiiisdu'tion  in  the  Slave  States;''  and  should  never  interfere  v. itli 
slavery  in  tlie  District  of  Cohimhia,  without  the  consent  of  .Maiv- 
1 111(1  and  Virginia,  so  long  as  slavery  eontimied  in  these  State.-;, 
wiihout  the  consent  of  tiie  inhabitants  of  the  District,  and  with- 
out coiniieusatiou  to  them. 

Ciingress  was  also  inliibited  from  forhi(hling  oHicers  of  tiie 
I'liiti'd  States,  or  niemhersoF  Congress,  to  take  their  slaves  to  and 
tiMiii  the  capital,  and  from  interference  with  the  transport  of  slaves 
li.uveen  tlie  States  or  l)etwoen  a  State  and  a  Territory  soutli  of 
Uh  Missouri  line:  and  was  empowered  an<l  directed  to  provide 
Inr  the  piynicnt  of  tlu^  \alue  of  a  fugitive  slave  to  liis  ovi'iier 
\viii':e  liis  return  was  prevented  l)y  force.  The  proposed  nnit'iid- 
iiiriit>  further  ordaiiu'cl  that  neither  tliese  nor  the  provisions  of 
ilif  Constituvion  as  to  the  ratio  of  representation  and  thi!  return  of 
tiiLiili.ve  slav'cs  should  ever  he  aiTected  l)y  any  I  iture  auiendnK'nt  ; 
ani   that   U)  amendment  should  ever  he  made  to  permit  ('ongrest; 


IhTciiirin'o  rof.;! rod  (o  .  .  .  Ilioso  wliicli 
IkuI  openlj'  iiml  avowodly  r.'fiised  to 
j'i'riiiiiii  thoir  olili«iitiona  andor  tho 
<'i>ri:i:iliiliou  .  .  .  rocediu^'  from  thoir 
I'li^iiioM,  (Jiidgo  Chasi>'s  oiiininu  to 
111''  loiilrary.  iiotwUlislaiidiiigi,  mid 
tlial  iipoii  tills  rodross  of  grhnuuoes 
an  1  righting  of  tin*  wrong  coiiipluined 
ol,  till' s;'i'odcd  Status  would  havo  re- 
tiirni'd  to  their  fiositioiip ;  and  the 
wIhjIi'  Fcdoral  machinery,  at  no  dis- 
l.iiil  day,  would  hav<>  tioeu  rustoreil  to 
iis  iiuiinal  and  liarmonioiis  ai'tion  in 
ill  its  parts,  ns  peacefully  and  joy- 
-iiisiy  aa  when  it  first  went  into  opera- 
tic n.'  (Iliid.,  pp.  iU\,  417.  See  al,«o 
nis  SiM'orh  ill  opiiositiou  to  the  Hoees- 
■  11  Drdinani'O   of    (roorgia,   quoted 

.!..  pp.  I'tm,  an?.) 

S^'plii'ns  gives  tho  following  te.sti- 
iiioiiy  concerning  tho  altitude  of  Jef- 
fcrsmi  Dans:  "I  never  saw  a  word 
fr'cii  liiiii  recomnieiiding  si-cciision  as 
I  lie  proper  remedy  against  threaten- 
ing dangers  until  lio  joined  in  the 
gi  II  Till  letter  of  the  Southern  Scnatort* 
and  Kepreseutative-s  in  Congress  to 
tlii'ir  States  advising  them   to  taUe 


that  course.  This  was  in  Di^ccmher, 
]8(i(),  and  not  until  after  it  was  ascer- 
taiied  in  theCommilteeof  theSenate, 
on  ilr.  Critteudi'n's  proposition  for 
iiuieting  the  apprc'.icn-iona  and  al.irm 
of  the  Sou'iiern  Strifes,  from  the  ao- 
eession  of  Jlr.  Liicolii  to  power,  that 
tlie  Kcputjlicaiis,  his  Kujipoiters,  would 
not  agree  to  tliat  measure.  It  is  well 
known  that  hotli  he  and  Jlr.  Toombs 
both  declared  their  williuguess  to  ac- 
cept tho  adoption  of  Mr.  Crittenden's 
measure  as  a  final  settlement  of  tho 
controversy  between  tho  States  and 
sections,  it  the  party  coming  into 
power  would  agree  to  it  in  the  same 
spirit  and  with  tho  same  assurance." 
(Ibid.,  vol.  i,  jip.  -tlCi,  417.)  See  also 
Douglas'  speech  in  the  Senate,  Jan. 
:!d,  IsiU,  .slating  tho  jjosilion  of 
Toombs  and  Davis  at  that  time. 
(Cong,  (tlobe,  "2(1  Sess.,  .'ll'dh  Con- 
gress, appi'iidix,  p.  411);  Iteport  by 
H.  V.  Hell,  commissioner  of  (leorgia 
to  Tennessee  (.lournal  of  Georgia  Con- 
vention, p.  ;)(iK);  article  by  J.  It.  Co.\ 
ill  .\lhuitic  Monthly  tor  IStVi,  p.  'i'M ; 
iiifra,  note  fiO. 


17-2 


llIS'l'OltY    OK    SKCKSSIOX. 


[fllAl'.  II. 


to  inti'iRTc  willi  slavery  witliiii  tlif  StatL's.-'  Tlie  ivsdliitioiis 
;ils(i  jr.'ovidcd  i'nr  :'.iiii'ii(liiiL'iits  to  tin;  Fiii^itive  Shivu  l:i\v,  so 
as  oil  llio  (niu  hand  lo  provido  for  tlu:  imiiisliment  of  oiipo- 
sitioii  to  it,  and  oil  tln'  other  to  give  thi;  cominissioucr  tlie  same 
fee,  ini'sjK'utivo  of  liis  dei'isiou,  and  to  only  coiiiind  the  assistaiifi! 
of  the  power  of  the  eouiity  in  ease  of  resistance  or  danger  of  res- 
eue.  Theic  was  also  a  sop  to  the  North,  in  a  d(;elaration  that  tlii' 
laws  for  the  sniipression  of  the  slave  trade  shonld  lie  elliciently 
exeented,  and,  if  need  he,  farther  enaetinents  for  that  purpose 
should  he  made.-'' 

A[eaiiwhilc,  in  order  to  aid  the  eanse  of  slavery,  Virginia,  iiiiiid- 
ful  of  her  action  during  the  e.\periinent  of  nuUilieatioii.  on  January 
I'.ltii,  IStJl,  called  a  conference  of  eonunissiouers  of  — 

"  all  such  States,  whotiier  Hhive-iiohling  or  noii-shivc-iioldiiii;,  as  are 
willing  to  unite  with  Virginia  in  an  earnest  effort  to  luijust  the  pivsont 
unliapjiy  colli roversies,  in  tlio  spirit  in  wliieli  the  (,'onstitutioii  was  oiii;!- 
luUly  formed,  and  consistently  with  its  |)riiiciples,  so  as  to  afford  to  the 
people  of  the  slave-holding  Slates  adequate  guarantees  for  the  scciiiity 
of  their  rights. 

Tho  resfiliitions  for  the  call  ex])ressod  the  opinion  that  the  propo- 
sitions enihraeed  in  the  Crittenden  resolutions,  — 

"so  inodilied  as  that  the  first  article  proposed  as  an  amendment  to 
the  Coiistitutioii  of  the  United  Stales  shall  apply  to  all  the  territory  of 
the  I'liited  States  now  held,  or  iiereafler  ae(|uired,  south  of  lalil'ide 
thirty-six  degrees  and  thirty  minutes,  and  provide  that  slavery  of  the 
African  race  sliall  lie  elTeetually  protected  as  property  therein  during  the 
contiuuai.ee  of  the  territorial  government,  and  tiie  fourth  article  slinll 
Hceui'e  to  the  owners  of  slaves  the  riglit  of  Inmsit  with  their  slaves  le- 
tweeii  and  throii','h  (he  noii-slavediolding  Slates  und  'rerriloiies,  consti- 
tute tlie  liiisis  of  sueli  an  adjustment  of  the  iiuhappy  controversy  wliicli 
now  divides  tho  States  of  this  eoiifedeiacy,  as  would  he  aecepled  \i\  the 
peOphi  of  this  commoiiweollh."  '-' 

The  eoni'ereiiee,  uhieli  iiad   no  powers  except  to  affect  pnhlic 


'  Jlfol'lier on,  History  of  llio  iio- 
iMllion,  pp.  'il,  n.5.  15laiue,  Tweiit.v 
Ye;irs  in  (kjntjross,  vol.  I.  pp.  -JBl,  '2(12. 

-•■■  Il.i.1. 

•' Crltt(Mi(le>i.  Report  of  llio  l)c- 
linleh  am!  Pro  ceiling    ot  llio  (.'onfi'i- 


oncn  Convention,  p.  !t.  Thn  ro.soliitious 
were  passed  at  a  speeidl  sijssion  m'  lln' 
k'Klslaliire,  ciiHihI  for  that  piirpos.'. 
•I'yler.  liife  ■'  '  Times  ot  tho  Tyler-, 
vol.  ii,  1'.  <lt;. 


]>KAC 


coNi'i'.Kr.Nrio, 


()pii)i(in,  siiico,  under  tlu;  Constitutioii.  ainciulinciitx  could  oidy  bo 
jiiDjiiiSv'd  liy  CouLfi-cs.)  or  hy  a  convcut'uui  of  tlu:  Stit.  h  (".lUcil  liy 
('iiM:;!v.s-i  u])on  tlio  upplication  of  two-tliirds  of  tliu  S(:Ue  lo^^asla- 
tiiii'S,-'*  mot  at  Wiisliiu'_;tou,  F(d)i'u;ii'y  kli,  1  Siil,  and  clioso  a.s  pre- 
.sidiiig  olliuer  ex-Frcsidt'iit  'lYli^'i'-  Tlu'  deli'tjates  went  appoiutud 
liy  the  l(!oislatu''cs,  jrovenuus,  or  couvi'iitioiis  of  twuuly-one 
States,  .seven  of  whom  were  slave  States  and  fouiteen  i'ree.^ 
Three  of  the  Northwestern^  and  tiie  two  I'aiilie  States,''"  all  of 
whom  were  free,  toj^fetiier  with  the  six  who  had  already  seceded  and 
■|\  xis  and  Arkansas,  whose  secession  uidess  the  rest  ix'tuiucd,  was 
from  their  location  (,bviously  iiu!vit:d)le,  remained  away. 

On  the  tilth,  the  eouferenee  adopted  a  rejiort  whieli  r.'com- 
iiifudi'd  the  adoption  of  seven  aineiidiiients  to  the  Constitution,^ 
and  these  were,  on  the  same  (hiy,  reported  by  their  president  to  C'oii- 
fjress.*'  Their  opinions  wei'e  greatly  divided.  Kiglit  of  the  free 
.States  were  opjxwed  to  the  reeonimendation  of  any  specific  amond- 
inents.'^  A  recommendation  of  the  re-enactment  of  the  ^Missouri 
("omproraiso  was  carried  by  the  vote  of  a  single  State,  and  would 
liave  been  defeated  Iiad  not  David  Dudley  Field  left  the  city, 
under  the  im])re.ssioii  tliat  his  vote  in  the  New  Voik  delegation 
would  lie  counted,  and  thus  cast  the  voice  of  that  State  against 
the  jiroposition.''"'  In  no  otlier  case  were  the  votes  of  more  thin 
six  free  States  ever  in  favor  of  any  amendment  which  gave  fur- 
thvn-  protection   to   slavery,   except   th'.t   which    permitted   State 

■-M'liiisUUitioii,  Arlifli!  V.  Tlio  iii- 
viiliilit y  of  any  ivrtioii  liy  tlio  CoiifiT- 
"Mii'c  WiiH  (li'iiionslratnl  liy  Ito.^i'i-  S. 
Baldwin,  fi  f;raii  Ison  ct  llo.^'i'i'  Klicr- 
niiiii,  who  had  liinisclt  liccn  fonnorly 
(iiivrnmr  and  I'liitod  Slates  Senator 
lit  C 'njieetit'nt;  liul;  his  pniposition  to 
■•-''■ninnieiid  all  tho  Slate  legislatures 
til  lUiito  in  a  renuest  to  C'oiij,'ress  to 
eall  siii'h  a  convention  in  tlie  method 
prescrilied  in  the  Const  if  ntlon  was  di.v 
tc-ited  liy  thovolH  ol'  thirteen  sLatwivl'O 
"i.,'ht  (ihid.,  |i|i.  5!)~r,7,  411  417.)  1?ho 
Ke/itucUy  le,t;lidaiurn  had  re<.)iiostciI 
I'diii'rnss  to  rail  buiIi  u  coiiveiUion 
(ihid.,  pp.  6a,  (;:t|.  Tho  C'onv<<iillon  or 
MiMnnrihadnpprovoda,  imilei  eoiii-se 
(Stephona,  C'onsti(;utii,>*al  VK'W  of  iSwj 


Wai'  between  the  State<(,  vol.  ii,  p. 
3ii4),  and  this  was  Lincoln's  preferenoo 
as  o.\prosseil  in  lii.s  inauijural. 

"'■>  Chittenden. Keportof  the  Pebates 
nnd  T'roeeedin^'s  of  tho  Pei;i-e  I'unvea- 
tion,;)fi.s.'<i'm.  Stephens,  ('iin.«!itic.iiinal 
View  of  the  War  between  the  Slates, 
vol.  ii.  p.  Sfil. 

■'"  Mirhiitan,  Mi.ssouri  and  Minne- 
sota. 

"'  Oregon  and  Cillfoniia. 

IK  Crittenden  s  Keport,  pp.  440  152. 

•"3  Ibid.,  pp.  471-473. 

°  Ibid.,  p.  417  ;  Hupra.  nolo  2.S. 

^  Now  Yorlt  was  roeoi'ded  os  di- 
vided under  protest  (ibid.,  pp.  441, 
■in;  5%  004). 


174 


TIISTORV    OF    S::CKSS'ON. 


[(;UA1'.  II. 


lej^isliitures  to  provide  for  tlio  return  of  fiij^itive  slaves.  This 
\Mis  supported  by  ei/^^ht  fiee  Status,  in  three  of  whom  the  dek'i,';i- 
tious  were  not  uuiininious.*'  The  couferenee,by  the  votes  of  eleveu 
States  to  ten,  refused  to  reconimend  an  amendment  to  tlie  Consti- 
tution forbichUng  secession,''"  and,  l)y  the  votes  of  ten  States  to 
seven,  refused  to  dechire  secession  unconstitutional.'''*  Their  rec- 
ommendations included  the  substance  of  the  Crittemlen  resolu- 
tions; but  the  Missouri  Compromise  Avas  limitc<l  to  the  Territories 
then  existing  and  the  language  was  ambiguous.'''''  There  was  iw 
provision  compelling  territorial  legislatures  to  protect  slaves  as 
jiroperty;  and  it  was  provided  tliat  — 

"  no  territory  shall  be  iicquired  by  the  United  States,  except  by  discov- 
ery and  for  naval  .ind  commercial  stations,  depots,  and  transit  routes, 
wilhout  the  eonciUTcnce  of  a  majority  of  all  the  Senators  from  States 
which  allow  involuntary  servitude,  and  a  majority  of  all  the  SenatoM 
li'om  the  States  which  prohibited  that  relation  ;  nor  shall  territory  be  ac- 
(iwired  by  treaty,  unless  the  votes  of  a  majority  of  all  tlie  Senators  from 
eaeli  class  of  States  hereinhefore  mentioned  be  cast  as  a  part  of  the  Iwo- 
lliii'ds  majority  necessary  to  tlio  ratification  of  such  treaty." 

Tlie  grant  of  the  right  of  transit  with  :  laves  was  further  pro- 
tceted  so  as  to  forbid  a  discriminating  tax  on  the  shipments  of 
slaves,  and  limited  so  as  to  exclude  "  the  right  of  transit  in  or 
tlirough  any  State  or  Territory,  or  of  sale  or  traflic,  against  the 
laws  thereof." 

It  vvas  j)i(niile(l  that  the  constitutional  provision  for  the  return 
of  fugitive  slaves  — 

"  should  not  be  construed  to  prevent  any  of  the  States,  by  approi)riate 
legislation,  and  through  the  action  of    tlieir  judicial  and  ministeii:il 

■"  Crittenilen's  Koport,  p.  iU. 

«'  Ihiil.,  p.  :!',ts,  109. 

ns  11)1(1. 

3^  Tlio  laiignaf?e  u-^ed  was  that  "  in 
nil  llio  i)i'(>si'iit  tci'i'ltory  Houlli  of  llin 
liiK!  nionlioncil,  tlie  xtatuii  of  persons 
held  to  Borvlee  or  labor,  as  it  now  ex- 
("xisIh,  shall  not  be  elianRi'd."  Aecoi'd- 
inj;  to  T.vlei',  Chase  slated  in  tho  eoii- 
fi'i-eiiei!  '•  that  lh(5  whole  interpretation 
uf  the  s(>cti()ii  WHS  that  it  was  the 
H^l(»M  ll-ci'd  by  the  Mexican  hnv  uf 
t'liKiUcipatioM,    u'hieli    h.-id    bi'cu    pni- 


olaiiiied  )>y  the  Mexican  pivcniineiit 
years  before  the  acqiiisiiidn  of  tli" 
western  territory  tiy  the  I'll i led  Slater; 
and  he  inainliiined  that  the  hiwiif  New 
Mexico  was  tho  utitttis  of  fn'O  soil." 
"I  thankfid  hlin  for  his  explaualioii 
afterwards.  I  went  to  him  and  siilil: 
'You  have,  at  all  events,  I'stablislicd 
.your  chaiacter  as  an  h<iiie«t  and  frank 
man.'"  (L.  (i.  Tyler.  Letters  iind 
Times  of  theTylei's.  vol.  il,  p.  r,0,-).  Si'e 
also  tlio  spe<'eh  ot  Ohasi',  as  ropoi'led 
by  Chiltenden,  pp.  :t'2(l,  .'I'JT.) 


■] 


coNCKssioNs  ()irKi;i;r)  hy  tiik  noktii. 


1^ 


(illii'iTS,  from  onforciiig  the  delivery  of  fugitives  fiom  labor  to  the  per- 
siiu  to  viUum  such  service  or  labor  is  due.  "  ""' 

Ci'iii^ii'ss  was  (Ihcctcil  to  "providu  liy  law  i'or  securing  to  llie 
citi/.riis  of  each  State  tlie  privileges  and  iminunities  of  citizens  in 
the  several  States."  ■•'  Amendments  of  the  Constitution  to  forlud 
the  foreign  slave  trade,  and  .slave  trade  in  the  district  of  Coluiii- 
lii;i.  lidtii  of  which  were  already  forbidden  liy  law,  were  also  reeom- 
iiiciulcd. 

S!ii;lit  a.s  were  these  alterations  of  her  ultimation,  the  Soutli 
refused  to  accept  them.  I'pon  the  presentation  of  their  report  to 
the  State  legislature,  the  commissioners  of  Virginia  denounced  tlie 
ni'oiiiiueiidations  "as  a  didtision  and  a  sham,  and  as  an  insult 
ami  an  offence  to  the  South  ;"'^-  and  Imt  six  Senators  supporteij 
Crittenden  when  he  moved  to  substitute  them  for  those  which  he 
had  originally  proposed.''' 

Tiie  teinpir  as  widl  as  the  conscience  of  the  North  wa.s  l>y  this 
time  thoroughly  aroused.  Her  leading  statesmen  realized  that  if 
suhiiiission  was  made  once  again,  the  future  would  produce  still 
uiore  arrogant  demiiuds;  lliere  would  be  no  limit  to  the  aggres- 
sions of  the  slave  power:  and  tlie  example  wiuild  arouse  similar 
o[i]iosition  throughout  the  I'liion  to  unpopular  legislation  of 
(Viry  kind,  so  that  the  Fedenil  government  wotild  become  as 
impotent  and  disorganized  and  society  as  disordered  as  in  the 
Spanish  .American  republics. '^ 


*^  'I'liis  KIM  for  till)  imrposo  of 
.■uiTiiilliii;.;  till'  ruliiif!  in  I'l-ini;  v.  I'enii- 
sylviiniii,  ](i  PetiTS,  .'Mil. 

■"  This  was  ilesi(»neil  to  protei't 
lii.H'lv  s:i:l(ii'8  ill  SoiUliern  ports.  See 
tlio  (li.'-inisslon  of  tie  iippi'oprlntc 
sivlioii  of  the  Const itiition,  infra. 

*-  Toll.  2S,  1H(U  (Mrl'lierson,  IliH- 
toiy  of  till"  R(«lii'lli<iii,  p.  Ci). 

*'  Doiigliis,  Harlan,  Andrew  .Tohii- 
son,  Ki'nueily,  Moirill  and  Tlioinson 
iiliid.,  p.  CO). 

"  Limolri,  in  ii  eonviM'salion,  re- 
poiled  ill  till!  New  Yorl<  Trilmne,  Jan. 
■UK  lsi'>l,  iisrd  tliese  prophetic  words: 
"I  wili  suffer  di'atli  liefore  1  will 
('dusi'iil  or  adviso  my  friends  to  rou- 


sent  to  any  eonpessiim  or  conipro- 
n;ise  wliieli  looks  liUi'  l)iiying  tlie 
privile^'o  of  tiikin;;  iKi-^r-i'ssion  of  liie 
Hoveriinieiit,  (o  wliiili  wn  liiive  a  eoii- 
fititiitioual  rinht;  lii'cause,  wliatever  I 
may  tliinU  of  l\\>'  merit,  of  the  viirimis 
propositions  lii'fore  ('oiif,'ri'ss.  I  should 
reiiard  any  <'oneession  in  the  fare  of 
ineniice  as  the  (lostrn<tion  of  tlio  t^ov- 
erninent  ilself,  and  a  consent  on  all 
liamla  that  our  system  shall  he 
liroiiKht  down  to  a  level  with  the  ex- 
isting disornani/.od  state  of  affairs  in 
Mexico.  lint  tliia  tliinj^  will  licrc- 
afler  lie,  lis  it  is  now,  in  the  hands  of 
the  pi'ople :  and  if  they  desire  to  call 
u  convention  to  remove  any  |,'i'ievauco8 


170 


IIISTOKV    (IF    SK(!I':SSI()N. 


[('MAI'.  II. 


liy  tilt' cnmiU'oiiiisis  in  tlic  ("(institutioii,  tlicy  wi'i'n  williiii^f  in 
iiliiilc.  'I'lii'V  wi'ic  |in'iiiiiT(l  tit  irii'VdiMlily  iiLfi't'c  tliiit  iid  aiiu'inl- 
iiiciit  to  llic  ( 'unstitiitiiii:  sliduld  iirriiiit  thr  I'"c(lriMl  jfovcriiiiii  ,ii 
to  iiiti'ifcic  witli  slavery  within  a  Stutr.'''  'I'licy  cvi'ii  olTi'iTd  t(i 
scciii'i^  the  uU'eutivi!  operation  ol"  the  i''iiL;itive  Slave  law."'  ihit 
they  reliiseil  to  inihed  in  the  ( 'oiistitiitioii,  heyonil  tln^  |]ii\vir 
of  aiiK  iidniriil  exeejil  hy  iinanlniily,  inliihition.s  again.sl  iutLi- 
I'l'icnee  liy  the  I'nited  States  with  slavery  in  the  Disliirt  of 
Cohnnliii  and  the  'I'ei-fitories,  and  thii  rej^nlalioii  of  the  transit  nf 
.slavt'S  between  the  States  ;  and  to  make  similar  f^iiaraiities  aj.;;unst 
any  constitutional  amendment  which  niii;ht  affect  the  original 
eomjironiisi's.'" 

The   I'eaee   Confereni^',  called   liv  \'ir<;inia,   failed.      The    ('lit- 


foi'  tlic  iiennanenco  of  voaled  riplils, 
il,  is  not,  iiiiiio  to  opposo  "  (Mci'lior- 
Kon,  llisloiy  of  llio  llcbcllion,  p.  07). 

<•■'  I'l'li.  2H,  IHCl,  Urn  followiiiR  <on- 
Ktilutioiii'.l  nniondinnnt  piisscd  tlio 
UoiiKi)  liy  a  voti)  of  oiio  1uiiiiIi(m1  and 
thlrty-tliron  to  sixty-live,  niid  Miii'ch 
'J,  IhcSi'iiiiti)  liy  twenty-four  to  twolve, 
the  rivinisili!  two-thirds  in  eiich  CiiHc: 

"Articli"  XIII.  Xoaiucndniont shiill 
lio  nmde  tolheConslilntiou  whicli  will 
authorizo  or  givo  to  Coiigross  the 
power  to  nliolihh  or  lnt(!rfore  within 
.tiiy  State,  with  tho  diimeslie  Institu- 
tions thereof,  includiirii  tliat  of  iier- 
tous  hell  to  lalior  or  serviiie  by  Iho 
laws  of  said  State  "  iMerhor.^on,  His- 
tory of  the  Ilobellion,  pp.  ."lO,  (10).  Lin- 
coln, in  his  iiuiujjural  addre.sM,  March  1, 
ox]iressi'd  his  approval  tif  the  amend- 
ment. The  Ohio  and  JIaryland  le^;l.s- 
laturos  iiiiinedlati'ly  ratilUMl  it.  Had 
the  Soulli  accepted  this  as  a  llnal  fiet- 
llemcnt  of  the  controversy,  il  would 
undouliteclly  have  been  ratllied  by  a 
sufllricnt  numb(>r  of  the  Slates.  Since 
thopeacc-olTeriiiK  was  not  satisfactory, 
the  amendment  was  rejected  by  the 
Now  England  States;  in  many  of  the 
others  it  was  not  even  considered,  and 
it  obtained  no  ratillcations  except  by 
the!  wo  Stales  who  first  acted  upon  the 


subji'ct  (Blaine,  Twenty  Years  in  CVm- 
gre.ss,  vol.  1,  jip.  '2(iGa<i7).  The  Tliir- 
ti^enth  Amendment,  which  was  nili- 
lled,  abolishcil  .slavery. 

*^  An  amendment  of  the  Fuijilivii 
Slave  Law,  which  Iraiisl'erred  the  Ic-ir- 
ing  upon  any  disputed  f.acts  to  the  ro- 
sideiKM!  of  tlie  chiimant,  jiasscd  thi) 
House,  ll.'irch  1,  IHIil,  by  a  voteof  nini"- 
ty-two  to  eighty-three;  but  was  not 
c()nsid<T<'d  by  the  S<'n;ite. 

A  conference  of  seven  Norllicra 
governors,  in  December,  IHCiO,  agrecil 
to  reeomniend  in  olllcial  messages  tlio 
repeal  of  the  personal  liberly  laws  by 
their  respective  Slates  (Khodes,  'lis- 
tory  of  the  Uiulcil  Slati's,  vol.  iii  p. 
2.")'2,  citing  Belmont's  Lclters,  p.  JTi. 
Banks  nuule  this  recomniendalion  in 
the  legislature  of  Mansachusctl.s. 
Rhode  Island  repealed  her  Personal 
Liberly  law  in  .lanuary,  IfiOl  (lUunh's, 
ibid.,  p.  2r);!|. 

An  act  providing  that  a  fugilho 
from  justice  should  be  surri'iidiired  by 
the  United  Slates  judge  <if  thi'  UislricL 
where  he  was  found  was  defeated  in 
the  House  by  l'2u  nays  to  48  ye.is 
(WcPherson,  HLstory  of  tho  Rebellion, 
pp.  lU,  02). 

■*"  In  Lincoln's  eorrcspondenre  bi^ 
tweeu  his  election  and  inaugural  ion 


§;in.i 


foNCKSSIONS    OFFKItr.D    PV    TIIK    NMIfTII. 


177 


tcmli'ii  icsoliitioim,  wliicli  omlMiiliccl  tlic  (li'iiianils  of  tliu  sliivi; 
StattH.  wi'ii!  rejc'c'tod  liy  tliu  Xortli,  iMiivcli  '2(\,  two  <l:iys  iM'foit! 
till'  iM;iuj,'iiniti()ii  of  l/iiicolii.'"*  Two  diiys  eiirlicr,  l'"c-l)riiiiry  "JStli, 
ihr  Ciiiil'i'doi'iitu  Coiigii'HS  liiid  piisscd  a  l)ill  autlioi'i/.iiii,'  I'lcsiduiit 
Davis  to  tidcc  foiiiiiiiiiid  of  tliu  military  forces  of  tlic  sccodcd 
Staf/s.-"'' 

Mill  olii's  iiiaiifjural  was  conciliatory  in  its  tone,  lie  expressed 
\villiiit,'iiess  to  ap|ii-ove  a  constitutional  aniendnieiit  inakinj:^  it  for- 
ever iiii]iossii)le  for  tlie  l''ederal|r(ivernnie!it  to  interfere  with  shivcrv 
uiiliiii  a  State  witliont  its  consent.  Ho  furtlier  suf^'fjfested  tliat 
a  eonvention  of  tliu  States  was  tlic  best  metliod  of  j)rci)arin!^ 
aiiieiidinents  to  tiie  ('onstitiition/'"  He  repudiated  tlie  ritrlit  of 
secession:  and  announcHjil  liis  determination  to  inaintiiin  tlie  laws 
(if   the    riiited    States.'''      It  was  well    known   that   tliere  was  a 


Uli."l.'s, 

^E'.':.i 

fUt,'itiM' 

m  ' 

iler.Ml  li.v 

K  '■ 

■  Di-liiil. 

B"  ■ 

f.Nib'l  ill 
•IS     VM- 

Wk'r.ji 

lolit-llii'li, 

W^i 

hi' wiiil  iiniiin  and  nuiiiii  tlint  lie  was 
•' inlli"\ilile  (Ml  tho  territorial  iiiies- 
limi."  (Lini'olii  to  Tliurlow  AVecil, 
lii'c.  17,  iHCil),  Nleolay  and  Ilay,  Lln- 
i-i'lii,  Mil.  iii,  p.  2't'^•,  to  Kelld;,'^;,  Dec. 
II,  isi'.li.  iliid.,  p.  2.")7 ;  to  Waslilmrii, 
Dir.  1,1,  IHdO,  ilild.,  p.  2.")',);  to  Scw- 
iiril,  l''i'b.  1,  1H(U,  iliid.,  p.  2(iO.)  "  Pre- 
vriit  as  far  a.'^  possllile  any  of  mir 
frii'iiils  from  deiriorali/.inj^  ttu'mselvi'S 
ai;ii  llieir  cause  liycntertalniiit!  propo- 
■^iiinns  for  coniproiiil.se  of  any  sort,  on 
shivery  e.xtonsioii.  Tliere  i.i*  no  piw- 
silili'  coniiironiiso  upon  It  Imt  what, 
jiiils  im  under  aj^aiu,  and  all  our  woik 
M  ilii  over  aKain.  Wlietlier  it  lio  a 
Ml-,  iiiiii  lino  or  Ell  Thayer's  popular 
siiv.ri'iunty,  it  is  all  the  same.  Let 
i'i,li"r  lio  done,  and  iniinedlately  1111- 
liiisirrinj;  and  cxlendiiiK  slavery  re- 
(•iiiiiiMciiccH.  On  tl'..i.l.  I'liiiit  hold  firm 
lis  11  I'liiiin  of  stool  ■■  (Lliicilii  to  AVash- 
liuiii,.,  Doc.  13,  IHfii.  ill!.!..  I  .  a.'iO). 

lie  wrote:  "I  j-inatily  think  all 
"ppiisil ion,  real  and  ;i|>)iiiri  lit.  to  the 
fii;;ilivc  Hiavo  clau.se  of  the  Constilu- 
tiiMi  imiiht  to  lie  withdrawn  "  {Lincoln 

to  w.i'd,  Doc.  17,  iHoa,  ii.iii.,  p.  2r>;i.) 
.\nd  Inter:  "  As  to  fiif;itiv<' slaves,  Dis- 
trict of  Qiluniliia,  slavo  trade  anions 
till'  -liivo  States,  and  wluitovor  springs 


of  necessity  from  the  fact  that  tho 
institiillon  is  ainoni^st  us,  I  caro  hut 
little,  so  that  what  Is  done  he  comely 
and  not  allo^ethor  (nitrau<'oiis.  Nor 
do  I  care  much  about  New  Me.'ilco,  if 
further  e.\(,en.sion  he  hi'd;.!ed  a'-;.iiiist" 
(Lincoln  to  Seward,  Feb.  1,  ISCl,  ibid., 
p.  2(10.  See  al-ii  ibid.,  pji.  2r)H,  209,1. 
For  a  siiminary  of  tlie  ililTerent  propo- 
sitions for  a  srit  Icm.'iil  of  the  conlro- 
ver.sy,  see  Nicolay  and  Hay,  Life  of 
Lincoln,  vol.  iv,  pp.  '2'20  '222. 

■"'  Tlu'  vote  in  the  Scimte  was  nine, 
teen  yeas  to  twenly  nays,  six  senators 
from  the  slave  Slates  refusing  to  vote, 
sincp  they  knew  (liat  unless  the 
ainendments  liad  the  su|)port  of  the 
Norlli  in  Coufjress,  tliey  would  not  liii 
ralilled  by  the  States.  (McPliorson, 
History  of  the  Keliclllon,  pp.  CO.  (17). 

*'•>  Mel'hcr.son,  llislory  of  the  llcbel- 
lion,  p.  117. 

'"  This  was  the  proposition  of  ex- 
Governor  Haldwin  to  the  Peace  Con- 
ference, Hiipra,  note  2H. 

M  He  wrote  this  with  the  Coiisiiln- 
tion.  Clay's  speech  in  support  of  the 
coni|iroiiiise  of  lS,"iO,  .lackson's  prochi- 
niatien  aKiiinsI  niillilicalioii,  and  Web- 
ster's reply  to  Hayiie  lieforc  him 
(Hcrudon,  Lincoln,  vol.  iii,  p.  HH).    Ho 


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Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  HSSO 

(716)  873-4S03 


II 


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178 


HISTOUY    OF    SKCKSSIOX. 


[(MIAl-, 


division  in  liis  caldriet  as  to  the  rifijlit  iiiid  fxpoiliency  of  (li'feiKliii;,' 
the  pliici'S  owned  hy  the  Kedenil  j^oveninieiit  in  tiie  seci^diil 
States ;  and  it  was  the  helief  cf  tiie  coniniissionera  sent  liy  the 
Confederate  government  to  negotiate  ujion  this  point,  tiiat  Scwiir-i 
liad  promised  that  Fort  Siunter  wouhl  l)e  surrendered/'^  Many 
(if  the  leaders  of  tlie  llepublicans  in  the  North,  amongst  their 
Iloraee  (ireeh'v,  tadvised  tiiat  the  seceding  States  be  permitted  to 
depart  in  peace. ''^'  The  South  still  helieve<l  that  when  slie  showed 
she  was  in  earnest,  the  Nortii  would  yiehl ;  and  that  even  if 
l^incoln  wished  to  resist,  he  was  jiowerless  to  act  under  existiufj 
laws.^  On  April  l:Jth,  the  militia  of  South  Carolina,  under  tlic 
command  of  a  Confederate  general,  lired  upon  Fort  Sumter,  wliicii 
was  held  hy  a  small  company  of  the  army  of  the  I'nited  States. 
in  Charleston  harbor,  without  provisions  to  endure  a  siege,  ami 
within  the  range  of  guns  fronj  the  shore.  After  a  short  resistance 
to  save  his  honor.  Major  Anderson  two  days  later  surrendered 
the  foil,  iiut  the  vi(!tory  wius  indeed  like  one  by  I'yrrhus.  The 
Xorth,  roused  by  this  blow,  rose  to  the  defense  of  the  flag.  On 
the  l;")th,  Lincoln  called  for  seventy-live  thousand  troops  to  defend 
the  I'liioii,  and  the  governoi's  of  all  the  fre(!  States  at  oxh'c  re- 
s[ioiided.-"  The  Xorth  had  received  the  call  and  refused  to  lay 
down  her  cards.  The  South  had  too  much  pride  to  recede.  Her 
leadei's  had  raised  a  storm  which  it  was  now  too  late  to  cease ;  and 
they  were  carried  along  by  the  tide.* 


iiimlc  a  few  alt eral  ions  at  tlio  suKsjert- 
liou  of  Sewaril  (Nieolay  ami  Hay, 
Life  of  Lincolti,  vol.  iv,  pp.  321-32;)). 

"  Davi.^,  Rise  oud  Fail  of  the  Con- 
federate Goverumeut,  vol.  1,  pp.  263- 
281,  (i7.-)-(!85. 

M  "  i;  tho  Cotton  Stales  shall  do- 
cido  that  tlioy  can  do  l)ettor<)ut  of  the 
I'liion  than  in  it,  we  insist  on  letting 
tliem  go  in  peace."  Tho  Tribune, 
Nov.  it,  ISfiO. 

^  See  note  7,  niipra. 

^  See  infra,  §  3S,  note  1.  The  con- 
stitutional  authority  for  this  procla- 
mation Is  iiirtcusfiod  in  n  subsequent 
chapter. 


""  .VllhoU(,'h  Ihi.s  is  not  the  view 
usually  talicn  l>y  lii.><torl;iMS,  it  is  'lilli- 
cull  fur  tlie  wrili'r  to  see  howan'Hiu- 
(lent  with  per.sonal  experience  in  i^ 
maniruvres  of  polities  or  of  litiuiitli^i 
can  cHcape  tliiH  conclusion.  Noillicni 
writers  duriuii  the  war,  anil  those  wli" 
are  still  unili'r  tho  inlluence  of  tin' 
passions  of  that  time,  eharne  that  si- 
cession  was  the  r(^sult  of  a  conspiriii'v 
by  a  few  amliilious  men  for  the  pii- 
ruaiient  disruption  of  the  I'nion  ami 
the  eslalilishnient  of  a  H'eat  slav.' 
empire.  The  eviden<'(i  collected  hy 
Bliodes  in  his  History  of  the  fnltiHl 
States,*  vol.  ill,  i)p.  272-2«(»,  381  ;tS5, 


*  Ulioil's,  ImwRver,  <1o;^h  not  ncciia  to  agreo  with  tlie  pruxent  writer  as  to  tli  •  ori^inil 
iiiliMitiitiH  of  Ihc  Soutliern  leaders. 


;  :!•!.] 


SKCESSION    AND    DIVISION    OK    VIIKilXIA. 


179 


Oil  May  ISth,  the  people  of  North  Ciiroliu.i  elected  a  coiiveii- 
(iiiii,  wliieii,  on  the  2l8t,  passed  an  ordinance  of  secession.  The 
Li't,'islature  of  Tennessee,  at  a  secret  session  on  May  7th,  passed  a 
(leilanitiou  of  independence,  and  an  ordinance  dissolving  the  Fed- 
(T.il  relations  between  the  State  and  the  United  States,  which  was 
submitted  to  the  people,  and  adopted  the  8th  of  June.  In  Vir- 
^'inia,  which  had  at  first  proposed  a  coniproniise  between  the  two 
.sections  of  the  country,  on  April  17th,  an  ordinance  of  secession 
was  pa.sscd  in  convention,  and,  June  2r>th,  was  adopted  by  a  popu- 
lir  vote;**"  there  being  an  understanding  with  the  other  seceded 
Stites  that  they  would,  as  hostages  for  her  i)rotection,  remove 
their  President  and  Congress  to  Uichmond,  wliich  was,  on  .May 
i;ist,  made  the  capital  of  the  Confederacy.''*  Her  people  on  tlie 
west  (if  tlic  Alleghanies,  however,  who  abutted  on  tiie  free  States 
(if  Oliio  and  Penn.sylvania,  knew  tliat  llieir  interests  as  well  as. 
tlieir  sympathies  were  on  the  Nortiiern  side,  and  broke  away  from 
[\h\  rest  of  tiie  State.  Two  years  later,  June  '20tli,  1803,  Congress 
aih'illtcd  West  Virginia  into  the    Union,  after  her  citizens  had 


401  4()H  (SCO  iiIko  Sleiihi'iis,  Constitn- 
lioiiiil  View  of  tlm  War  between  tho 
Sliili's,  vol.  ii,  p.  3S9i,  proves  ooiiclii- 
sivi'ly  that  aft^-r  tho  moveiiiout  was 
uiijcr  viiiy,  tho  jicojilo  of  tlio  South 
wont  fa^.l■r  than  their  h>aders  wished. 
JoffiTson  UavLs  urKcil  them  to  go  nioro 
t'owly,  and  said  in  private  coaferenco 
and  l)y  letters  and  telegrams  lliat  ho 
was  "opposed  to  seecsslou  ns  long  a« 
tlio  hope  of  a  pc^aeetiil  remecly  ro- 
niained"  (Letter  of  O.  R.  Singleton, 
(|uiite(l  by  Davis,  Kiso  and  Fall  of  tho 
('<iiif"derato  CJovernmenl,  vol.  i,  p.  58  ; 
see  also  ibid.,  pp.  2'' 1,227  ;  Lifeof  Davis, 
by  lua wife,  vol.  i,p.G;)7).  Even  Toomb.s 
WHS  aeeused  by  his  eonstituonts  of 
lirandisliiug  a  tin  sviord  (see  citations 
by  Kliodos,  ibid.,  vol.  ill,  ji.  21.1).  Tho 
cvid(;n(!o  cited  in  note  24,  mipra,  as 
well  as  all  tho  contemporary  reports, 
prove  that,  had  tho  Crittenden  com- 
promise been  adopt  eil,  secession  would 
liavo  been  ttbaudonecl.  (  •  the  other 
Imiiil,  the  addri^sses  to  their  i;ou8litu- 


ents  by  the  delegations  at  Washing- 
ton show  that  the  moveme.it  was 
directed  by  the  Southern  m  Miibers  of 
Congress.  And  tho  whole  order  of 
proceUurf,  with  its  draiiialle  situa- 
tions, threats  by  word  and  actiim, 
aeeompanied  by  offers  of  iniMlialion 
by  Virginia  ond  Kentucky,  in  indta- 
tion  of  former  proeodents;  and  tho 
measures  adopted  by  tlio  secivling 
States,  even  after  the  adoption  of  the 
])ermanenl  Constitution  of  the  Con- 
federacy, to  niako  no  chang((  in  the 
existing  order  and  create  no  olistacles 
to  u  return  to  the  Union,  show  that 
the  object  of  the  iiroceedings  wan  to 
scare  tho  North  into  further  eonees- 
sions,  not  to  tear  tho  United  States 
apart. 

"  MePherson,  History  of  the  Ke- 
bcUion,  pp.  3  H. 

"» The  first  capital  was  Montgomery, 
Ala.  Sco  Davis,  Uis(!  and  Fall  of  the 
(lonfederato  Govtsrumout,  vol.  i,  pp. 
33'J,  048. 


1«0 


HISTOKV    OI-   SKCKSSION. 


[ciiAr.  ir. 


cxiiressed  their  wish,  llirough  .i  convor.tiim,  .and  the  form  of  oIh 
taiiiiiig  tlie  consent  of  tlie  mothtr  State  liad  been  transacted 
liy  the  vote  of  a  so-eallod  Virginia  I^egislaturo,  ehosi-n  under  the 
control  of  tiie  Union  army  hy  a  minority  of  tiie  wiiole,  few  if  any 
of  wliom  claimed  to  represent  constituencies  out  of  the  new  State, 
and  in  no  manner  representing  the  wishes  of  Virginia.  This  was, 
in  fact,  a  revolutionary  proceeding,  justilied  only  by  the  exigency 
of  the  situation/'" 

The  South  had  relied  upon  the  common  interests  of  the  border 
slave  States  for  protection  against  invasion  by  tiwir  neutrality,  if 
not  alliance,  liut,  ground  as  tiiey  were  between  the  upper  and 
the  nether  millstone,  all  except  Virginia  refu.sed  to  incur  martyr- 
dom for  the  sake  of  .slavery,  and,  after  some  hesitation,  sided  witli 
the  North. 

Kentucky  at  first  attempted  to  remain  neutral,  and  her  house  of 
representatives  so  voted  in  May,  18(il.™  On  Ajjril  ITith,  the  gover- 
nor, Magoffin,  whose  .sympathies  were  witli  tiie  South,  and  who  liiiil 
previously  recommended  a  eonventicui  of  tiie  border  States  at 
Haltimore,"'  replied  to  the  call  for  soldiers:  '-In  answer,  1  siiy 
emphatically,  Kentucky  will  furnish  no  troops  for  the  wicked 
purpose  of  subduing  her  sister  Southern  States."'  '''•' 

President  Lincoln,  with  his  usual  tact,  at  lii'st  respected  tliis 
neutrality,  without  acknowledging  its  legality ;  and  sent  no  new 


•o  Upon  tilt!  votn  fiT  tlio  ndmisslon 
of  tho  new  Stiili',  Tlmdilous  Hlevons 
paid  :  "  Wo  know  that  ii  la  not  ciinstl- 
tutlonal,  but  it  la  nei  I'SHory  "  (Diivls, 
Riso  and  Fall  of  the  ('onfciloriito  Gov- 
oraniiint,  \o\.  11,  pp.  304-308).  Tlio 
host  lilstory  of  MieHfi  proci'cdlu^s  la  by 
Nh'olny  nud  Hay  (LIni'oln,  vol.  Iv,  pp. 
327-310;  vol.  vi,  pp.  207  313).  Tlipy 
will  be  (Icaciibcd  in  inonMlctail  In  tho 
rlin])ti-r  on  the  .idnd^islon  of  now 
States. 

"J  In  May,  ISfil,  llio  lowoi-  lionso 
of  tlii>  KiMitncky  Lcf^iKlatwro  adopted 
llio  followin;?  resolutions:  "Consld- 
eiinR  tho  d('plonii)lo  condition  of  tho 
country ,  for  which  Kentucky  Is  In 
no   way  responsible,   Bud  looking  to 


tho  best  nieniirt  of  pn  servlnR  tlm 
natural  jioaco  luid  s.^curiiiK  the  laws, 
llberly,  and  j)i'o|)erly  of  tho  citizens 
of  tho  Slale;  theri>foro,  HrMolreil,  by 
tho  Hoiiaii  of  Ilepresenlatives,  That 
this  Slate  and  tlio  citizens  the'cof, 
ahould  take  no  pirt  in  tho  Civil  Wiir 
now  beirif?  wa^'i'd,  except  as  medialorf 
or  frienils  of  tlie  b.-lllK^ront  partie-;; 
and  that  Keiiludiy  should  during  Ihe 
contest  oicupv  a  poslllon  of  strict 
nfiutnility"  (.Shaler's  Kentucky,  p. 
243). 

'"  Slep'.iens,  Constitutional  Vlow  of 
tho  War  between  tho  Statea,  vol.  il,  p. 
3f.l. 

"'^  5IcI'!ieraon,  Hlatory  of  the  V.*'- 
belUon,  p.  114. 


§3(!.] 


ACTION    OK    KKNTUCKY. 


181 


tnidiis  into  the  State,  although  lio  formed  a  recruiting  caiuii  of 
Kentucky  Union  soldiers  at  Camp  Dick  IJobinson,  Garrard 
('i)imtv.  JeilVi'son  Davis  offended  the  conservatives  by  the  state- 
ment, in  a  letter  to  (iovernor  Magoilin,  "tiiat  the  (iovernment  of 
tlie  Confederate  States  will  continue  to  respect  the  neutrality  of 
KcnUicky  so  long  us  her  people  will  maintain  it  theniselvcH."  "* 
The  lirst  invasion  of  the  Sfcite's  soil,  by  troops  from  other  States, 
was  made  by  the  C'onfederatc  forces  under  Polk  and  Zollicol'cr, 
Si'i)teniber  Jid,  18(Jl.  Grant's  army  followed  innnediately  from 
Ohio.  On  the  11th,  the  Legislature  passed,  over  the  Governor's 
vi'to,  a  resolution,  — 

"That  Cioveruor  Magollin  be  instructed  to  inform  those  concerned, 
that  Kentucky  expects  the  Confederate  or  Tennessee  troops  to  l)e  with- 
drawn from  her  soil  unconditionally." 

A  resolution  requesting  the  Federal  troops  to  withdraw  was 
defeated,  and,  on  the  18th,  the  LegislatiU'e  resolved,  over  the 
governor's  veto,  tliat  the  Kentucky  troops  should  expel  tiie  Con- 
fiMJcnile  invaders.'''  Tiicreafter.  Kentucky  co-operated  with  the 
other  loyal  States,  although  many  Kentuekians  joined  the 
Soutlicra  army.  A  majority  of  the  population  seem  to  have  been 
always  loyal,  but  those  who  sympathized  with  the  South  were 
allowed  not  too  much  liberty  to  vote.''''  A  so-called  "Sovereignty 
Convention"  of  persons  claiming  to  represent  sixty-five  counties 
(if  tli(!  State,  either  self-appointed  or  chosen  l)y  Kentuekians  in  the 
Confederate  army,  met  for  three  days,  in  November,  1801,  with- 
out any  authority  from  the  Legislature  ;  and,  on  the  20l]i,  passed 
an  (irdinance  of  secession,  and  elected  State  oHicers."''  The  Con- 
federacy went  through  the  form  of  admitting  the  State  into  their 
league ;  and  representatives  and  senatore  from  Kentucky-,  chosen 
by  Kentucky  soldiera  in  the  Confederate  army,  sat  in  the  Con- 
federate Congress.''^  Once  for  a  few  hours  the  Confederate  troops 
(H'cuipied  the  capital  of  the  State  and  attemi)ted  to  perform  the 
(•erei.  onial  of  the  induction  of  their  State  government  into  ])os- 


"iSlmlor's  Kontucky,  pp.  23.'i-247. 
So«  Davis.  Kiwi)  ami  Fall  of  tlio  Con- 
fi'dcnito  Govonunont,  vol.  i,  pp.  385- 
4(12. 

'»  Slmler's  Kentucky,  pp.  US,  250- 
253. 


«6SliaU>r's  Kt'utU(.-ky,  pp.  ;120,  331- 
33G,  3 18. 

««  11)1(1.,  p.  270.  McPhtTson,  Hls- 
of  Mill  Rebellion,  p.  8. 

'"  D.i\  is.  lUse  1111,1  Fall  of  tlie  Cou- 
(edoruto  Govorniuont,  vol.  1,  p.  303. 


1M2 


HISTOUY    OF    SKCESSION. 


[CIIAI'.  ir. 


Hcssion  ;  but  in  the  nldst  of  tlieir  governor's  speech  he  was  driven 
from  the  city  hy  an  attack  of  the  Union  troops."**  Meanwhile,  the 
Stiite  remaineil  in  the  Union,  and  was  rognlarly  reju'csented  in 
the  Congress  and  Electoral  College  of  the  United  States  witliout 
any  intermission. 

Missouri,  as  has  been  shown  above,  had  prepared  for  neiitrality 
six  years  befoA'."*  The  Legislature,  January  21st,  1801,  passed  an 
act  for  the  election  of  a  convention  "  to  consider  the  relations 
between  the  government  of  the  United  States  "  "  and  the  govern- 
ment and  people  of  the  State  of  Missouri ;  and  to  adopt  su 
measures  for  vindicating  the  sovereignty  of  the  Stivte,  and  the  pro 
tectidu  of  its  institutions,  as  shall  appear  to  them  to  be  de- 
manded ;  "  but  it  was  expressly  provided  that  "no  act,  ordinance, 
or  resolution  of  said  convention  shall  l)e  deemed  to  be  valid  to 
change  or  dissolve  the  political  relations  of  this  Stjite  to  the  gov- 
ernment of  the  United  States,  or  any  other  State,  until  a  majority 
of  the  qualified  voters  of  this  State,  voting  noon  the  question, 
shall  ratify  the  same."'"  In  the  election  of  delegates,  on  Fel)ru- 
ary  1  Htli,  the  people,  by  a  majority  of  eighty  thousand,  determined 
against  secession,  and  not  a  single  secessionist  was  chosen.''  The 
convention  resolved,  in  March,  by  a  vote  of  eighty-nine  to 
one,  that  there  was  "  no  adequate  cause  to  impel  Missouri  to  dis- 
solve her  connection  with  the  Federal  Union."  "^  They  also  ajv 
pointed  delegates  to  the  proposfnl  convention  of  the  border  States, 
as  well  as  to  the  Peace  Conference."''  Subsequently,  under 
authority  claimed  from  State  militia-laws,  some  of  which  were 
passed  for  the  occasion,  the  governor  attempted  to  oppose  the 
army  of  the  United  States,  and  left  the  State  to  seek  aid  from  the 
Confederacy.'''  In  the  meantime  he  had  replied  to  Lincoln's  cull 
for  troojjs :  "  Your  rc(piisition  i:i  illegal,  unconstitutional,  revo- 
lutionarj',  inhiunan.  diabolical,  and  cannot  be  complied  witli."'° 
The  convention  reassembled  in  July,  declared  his  oHice  vacant, 
a])pointed  a  new  governor  in  his  j)lacc,  abrogated  the  laws  luider 


«9  Sliiilor'H  Kpiitucky,  pp.  2fi0-272. 
«'■'  Supra,  nuto  !). 
'»  Carr'8  Missouri,  p  278. 
'1  Hild.,  p.  2S4. 
•-  Il)i(I  ,  p.  289. 

'•■'  11)1(1.,  p.  318.    Spo  Harper's  Maga- 
zini-  fur  1801,  p.  547. 


'*  St(>phen.'<,  CoDBtitutional  View  of 
tho  War  botwecn  tlio  States,  veil.  ii. 
p.  3C4. 

"  McPliorson,  History  of  tho  l!c- 
bellion,  p.  115. 


!j:lii.] 


ACTION   OF   MARYLAND. 


188 


uliic  li  Iio  claimed  to  act,  and  continued  to  exercise  supreme  con- 
tidl  ;it  intervals,  until  June,  I8(i3,  when  they  dissolved,  after  the 
iiilnliiioii  of  an  ordinance  for  f,'radual  eniancipation.""  A  rump  of 
less  than  a  quorum  of  the  Lc},'islaturc  met  in  extra  session  at  the 
suiinuoiis  of  the  deposed  povernor,  October  21st,  18(!1,  under  the 
jiiotcction  of  the  Confederate  army,  away  from  the  capitid  of  the 
Stiitc.  'I'lii'v  voted  an  ordinance  of  secession,  wliich  the  C'onfed- 
ciatc  povernment  recognized  as  valid,  and  on  November  28t)i  the 
Inriii  of  an  admission  of  Missouri  into  the  Confederacy  was  trans- 
iutcd."  Missouri  was  represented  in  the  Congress  and  the  Elec- 
toral College  of  the  Union  throughout  the  war. 

Di'liuvarc,  which  was  bounded  by  the  free  States  of  Pennsyl- 
viiiiia  on  tlie  north  and  east  and  the  slave  State  of  Maryland  on 
tln^  west  anil  south,  remained  loyal  throughout,  lender  the  plea 
that  the  State  law  did  not  vest  him  with  such  authority,  (iovernor 
l!iiit(in  ordered  no  militia  to  aid  in  the  invasion  of  the  South,  but 
recommended  the  formation  of  companies  of  volunteers  to  aid  the 
President  in  the  defence  of  Washington  and  the  support  of  the 
Ciiiislitution  anil  laws  of  the  I'nited  States.'' 

'riie  loss  1,'  the  slave  State  of  Maryland,  which  separated  the 
national  (lapital  from  the  free  States,  would  have  been  irrci)arable 
to  the  Xortli.  (rovernor  Ilicks  refused,  in  November,  1800,  to  call 
a  sjK'cial  session  of  the  lA.'gislature  at  the  request  of  a  number 
of  citizens  of  the  State  who  desired  to  aid  the  South;  and  De- 
(ciiibcr  lltth,  in  answer  to  the  commissioner  from  Mississippi, 
ilcclincd  to  assist  in  secession."*  At  the  same  time  he  declared 
liis  piuposc  "to  act  in  full  concert  with  the  other  border  States." 


■''  ri)i)n''s  CliiirlcrB  nnil  ConsUtu- 
lioiis,  |.p.  112:)  HHii. 

"  Xiiiilay  1111(1  Iliiy,  Lincoln,  veil,  iv, 
pp.  'Jlli;-'22n.  For  I  li(>  Confpdcnito  view 
(if  llicsc  pmccciliiitjs,  s<>n  DuvIh,  lliso 
mill  Fall  of  llio  Confi^lorato  Clovorn- 
iiiciit,  \'>l.  i,  pp.  •110-132. 

•»  Md'horson,  History  of  the  Eo- 
lioUioM,  p.  lU.  On  Jan.  3,  IHfil,  tlio 
li'Kisliituro  [laasoil  n  resolution  stntiiig 
llial,  "Imviiig  p.xlcnildd  to  tlio  Hon. 
II.  Diclilnson,  tlio  Coinniis-Hionor  of 
MissisKippi,  tlio  poiirtcsy  due  lilni,  ns 
lliu  Kcpresontativo    of    a  Sovoreign 


State  of  the  Confoderncy,  as  well  as  to 
the  State  he  represents,  we  deem  it 
proper,  unit  due  to  ourselves  and  tho 
people  of  D.'lawiire,  to  express  our 
unqualilled  liisappioval  of  the  remedy 
for  e.xistliiK  (lillliiilties  suggested  by 
tho  Li^Hislat  lire  of  Mississippi  "  (Ste- 
phens, Conslltiitioual  View  of  tho  War 
hetwi  (Ml   the  States,  vol.  1,  p.  370). 

'»  McPheison,  History  of  the  Rebel- 
lion, ]).  8.  Stephens,  Conslltutiimnl 
View  of  the  War  between  the  States, 
vol.  ii,  p.  368. 


1«4 


HISTORY   or    SEf'KSSION. 


[CIIAI-.  II. 


'I'lie  Htivte's  represcntiitivus  in  tho  Pence  ("ouference  ivnd  Cloiif^res-s 
sotjtl  for  llic  (.'oiicussions  (leiiuiiided  by  tlii;  South;  and  in  tlii' 
iiiL'iintinif  a  political  campaign  for  and  against  secession  was  in 
active  progress  through  the  State.  On  April  18th,  1861,  the  gov- 
ernor informed  the  people  by  a  proclamation,  "that  no  troops 
will  be  sent  from  .Maryland,  unless  it  may  be  for  the  defence  of 
the  capital."  On  April  I'.Hh,  a  mob  attacked  the  Union  troops  <m 
their  march  through  Haltimore.  On  the  following  day  the  com- 
mon council  appropriat(!d  live  hundred  thousand  doUai-s  for  the 
defence  of  the  city ;  and  an  informal  understan<ling  was  hail  with 
the  Kcdcrid  and  railroad  authorities,  that  no  troops  should  he 
marched  tlirougli  the  city  if  it  were  practicable  to  bring  them  to 
Washington  by  another  route.**"  The  Legislature  nu^t  April  i^iilli, 
and  on  tiu!  following  day  passed  a  bill  ratifying  the  Haltiniorti 
ordinance  by  a  vote  lacking  only  one  of  unanimity."'  On  April 
2'.tth,  the  legishiture  voted  against  secession;  in  one  house  unan- 
imously, in  the  other  by  a  majority  of  more  than  three-fourtlis.*- 
May  14th,  they  passed  resolutions 

"  to  re<j:ii?ter  this  lier  solemn  ])rotest  against  tlie  war  wiiich  tlio 
Kedcrai  govcrnnieut  lias  deelared  upon  the  Confederate  States  of  tho 
South,  and  our  sister  and  iieigiitjor  Virginia,  and  to  announce  her 
resolute  determination  to  iiave  no  i)art  or  lot  directly  or  indirectly  in 
its  prosecution." 

"  Tliut  tiie  State  of  ]\Iaryland  desires  the  peaceful  and  immediate 
recognilion  of  the  iu(lei)eiidenco  of  the  Confederate  States,  and  lierohy 
gives  lier  cordial  consent  thereto  as  ii  meuil)er  of  tiie  Union,  eiiteit:uii- 
ing  the  profound  conviction  that  the  willing  return  of  the  .Soulheni 
people  to  theii  former  federal  relations  is  a  tliiug  licyond  hope,  and  the 
attempt  to  coerce  them  will  only  add  shuigiiter  and  Inite  to  impossi- 
bility ;  "  and  "  That  under  existing  cirenn'stances  it  is  inexpedient  to 
call  a  soveii'ign  convention  of  the  .State  at  this  time  or  to  tuiic  any 
measures  for  the  innnediate  organization  of  the  militia." 

The  resolutions  also  protested  against  the  military  occupation 
of    the    State    as    "a  flagrant    violation    of    the    Constitution.'"*' 


«"  Dnvis,  Riso  and  Fall  of  llio  Om-  '-  McPlicrsoii,   History  of  tlio  lit*- 

fiMleratn  (iovcninioiit,  vol.   1,   i)|).  331,  bollion,  jip.  S,  U. 
■AM;   Itntli'i's  I!(K)U,  p.  IHl.  ►' Mcl'liorsoii,  History  of  tlio  Ke- 

"  Mul'liiT.-ou,  History  ot  tho   lie-  IjoUiou,  p.  307. 
boUion,  ]>.  3<JU. 


§;!t;.] 


ACTION    or    MAKYLAND. 


18& 


Diirin,:,'  the  discussion  of  these  resolutions,  (leiieriil  H.  V.  IJutli^r 
tciiik  iiiilitur}"  possession  of  Baltimore  on  May  l^Uli.'^'  In  tiie 
s;iiiie  month,  iin  attempt  was  made  to  pass  a  l>ill  to  appoint  a 
iJcciril  of  Publie  Safety,  with  authority  to  s))end  two  miiliou 
(lollai's  in  tlic  defence  of  the  State  ai^'ainst  tlie  FeiU'ral  army. 
Tills,  however,  was  linaliy  (U'fcateil.'^''  On  June  lOtli.  the  l-cj>;is- 
latiire  instructed  the  representatives  of  the  ."Hate  in  ('on^i<'s,s  "to 
urpe  and  vote  for  a  speedy  recognition  of  the  In(U'pendence  of 
tlic  fiovcrninent  of  tlie  Confederate  States  of  America."'^  When 
till'  Li'i^islature  reasseud)led  in  Septend)er.  its  a<Ioption  of  an  ordi- 
iiiince  of  secession  was  prevented  by  the  arrest  of  nineteen  mem- 
hcrs  under  the  order  of  tiie  Secretary  of  War;  and  by  military  force 
tl)o  State  was  retained  in  the  Union  with  regular  re[)rescntalioii 
ill  Congress  and  the  Electoral  College,  wliile  the  South  souglit 
i!i)nsolatio!i  in  the  song  of  "  Maryland,  my  Maryland."  *' 

'I'lio  trial  of  the  wager  of  battle  lasted  more  than  five  yeara.™* 
The  dispute  lus  to  the  construction  of  the  Constitution  was  too 
iiiiglity  to  be  decided  in  a  court  of  justice.  The  South  had  aj)- 
|i('alt;<l  to  the  final  argument.  In  imitation  of  tiie  Gallic 
Uii'iinns,  she  had  thrown  her  swoid  into  the  scale.  To  her  sur- 
piisc,  tiie  North,  less  timid  than  the  llonians,  followed  her  cx- 
luiipic,  and  the  weapon  of  the  hitter  proved  the  heavier.  'J'be 
\v>\\\t  determined  tlio  character  of  the  Constitution  for  all  time, 
and  coni[)elled  the  conquered  to  consent  to  amendments  which 
eradicated  the  evil  that  bad  been  the  cause  of  the  fraternal  dis- 
cnrd.  No  amendment  which  disclaimi.d  the  right  of  secession  was 
writti'ii  into  the  great  charter.  Pen  and  jjaper  were  not  nee(l(!d  to 
uxpn'ss  what  had  been  stamped  upon  it  by  l)lood  and  iron.*' 


"  HuHci-'s  Bool!,  pp.  22«-2;il. 

'■■'  M'l'heison,  History  of  tho  Ko- 
lielliuii,  pp.  n,  .T.tS. 

*ill>i<l.,  p.  3'.)8. 

"Il.iil.,  pp.  152,  153.  llossase  of 
Itovcriior  Hii'ks,  Doo.  3,  18151,  quoted 
li.v  D  ivi.>4,  lU.so  and  Fall  of  tho  Con- 
ri>iii'iiili>  Govcruniont,  vol.  i,  p.  330 ; 
Uhciilcs,  History  of  the  Uaitod  Stalfw, 
veil,  ill,  |ip.  553,  551.  Lincoln  hud  ro- 
fiiKi'd  to  authorize  Rii(;h  a  iJioi'ccdinR 
in  Ainil  (Nieolay  and  Ilay,   liiiuolu, 


vol.  iv,  pp.  1(17,  IC.S).  Tho  sul)ji"(t  of 
niilitaiy  arrost.-i  is  discussed  hilcr. 

"»  Tlio  war  closccl  Au^nist  20,  18CG. 
Soo  pioclaiiiation  of  I'rosidcnt  John- 
son of  tliat  date;  U.  S.  r.  Ander.son,  9 
Wallace,  50,  70;  Tlio  Protector,  12 
Wall.,  !'.00;  Adgers  r.  Alson,  15  Wall., 
500;  15urke  v.  Mlltenberger,  19  Mall., 
519,  525. 

"'  A  few  .State  Con-stitutiona adopted 
after  the  outhroak  of  tlio  Civil  War 
expressly  repudiate  tho  right  of  seces- 


18r>  ((iNSTirUTIONAL    HI8TOIIY    OF   CONFKOKItACIY.      [ciIAT.  II. 


^  :n.  CoiiMtitiitioiial  llUtory  of  tlio  Hoiitlifrn  ('oiif<'<l<>riif.v. 

Slavery  was  tho  cnrnur-atoiio '  of  tlio  Confudenvto  ('(Histitulion, 
hnt  the  doctrine  of  State  rights  lay  also  at  its  foundation,  iind  tlie 
latter  was  inoro  dangerous  to  its  advocates  tlian  its  opponents. 


§  It".  '  TliU  was  frankly  admitted 
by  lliu  Vlci'-rrcBldi'iit  of  tho  Confod- 
erni-y,  Ali'xiiinlpr  H.  Htophons,  In  his 
Bpcoch  of  March  21,  IHlil,  where  ho 
said  :  "  Many  (;(>\  crunicntH  have  lioeu 
foundod  upon  the  principle  of  tho 
fiulKirdinntlon  and  Horfdom  of  certain 
claswsdf  the  Bnnio  race;  Biioh  wore, 
and  are  In  vl()lall(>n  of  tho  laws  of 
nature.  Our  Hystom  corainits  no  such 
violation  of  nature's  laws.  With  us, 
all  of  the  white  race,  however  high  or 
low,  rich  or  poor,  are  cfpial  in  tho  eye 
of  the  law.  Not  so  with  tho  NcKro. 
Snlionllnatlon  is  Ida  place.  He,  by 
nature,  or  by  tho  curse  nRalnst  Ca- 
naan, Is  (Ittod  for  that  condition  which 
he  occupies  in  our  system.  T'.:e  ar- 
chitect, in  the  construction  of  bulld- 
in^!s,  lays  tho  foundation  with  the 
l>roper  material  —  tho  Krauite;  then 
comes  tlio  brick  or  the  marble.  Tho 
substratum  of  our  society  Is  made  of 
the  material  fitted  by  nature  for  It, 
and  by  experience  wo  know  that  it  is 
henl,  not  only  for  tho  Superior,  but  for 
thi^  hifirior  nice,  that  it  should  be  so. 
It  is,  iiulcod,  In  conforndty  with  tho 
ordinance  of  tho  Trontor.  It  is  not 
for  us  to  in(iulre  into  tho  wisdom  of 


Ills  ordinances,  or  to  qui'stlon  tliem. 
For  his  own  piirposes,  he  has  nmdn 
ono  race  to  differ  from  nnotlier.  as  !»> 
has  made  -one  star  to  dllTer  from  an- 
other star  in  nlory.'  Tlio  ureal,  iili- 
Jocts  of  humanity  aro  best  allainod 
when  there  is  conformity  to  libi  liws 
and  decrees  In  tho  formation  of  gov- 
ernments as  well  as  in  all  thln^;s  else 
Our  Confederai'V  is  foundeil  upon 
principles  in  strict  conformity  with 
those  laws.  This  stone  M-ldih  was 
rejected  by  tho  first  builders,  ■  is  he- 
coino  tho  chief  of  tho  corner'  the 
real  'corner-stone'  —  in  our  new  edl- 
fl<!o"  (Stephens,  Constitutional  View 
of  tho  War  between  tho  States,  vul. 
ii,  pp.  Sfi,  521).  In  the  cn'-e  of  .lohn- 
son  r.  Tomkins,  1  Baldwin,  271;  S. 
C.  Fed.  Cases,  No.  711C,  Mr.  .Justice 
Baldwin  of  tho  Supremo  Court  had 
said  of  the  United  States  :  "  The  foun- 
dations of  this  (lovernment  are  laid, 
and  rest  on  the  rights  of  propcilyin 
slaves,  and  the  whole  fabric  niiiKlfall 
by  disturbing  tho  cornerstone."  Jef- 
ferson Davis,  after  tho  war,  repudi- 
ated this  metaphor  (Davis,  llise  niirt 
Fall  of  tlie  Confederate  Government, 
vol.  1,  p.  201). 


slon.  Ill  Alabama,  Art.  I,  Sec.  35, 
roads:  "The  iieoplo  of  this  State  ac- 
cept as  llnal  ihn  eMlabliMhrd  fact  that 
from  tho  Federal  Union  there  can  be 
no  secession  of  any  State." 

In  South  Carolina,  Art.  I,  Sec.  5: 
"  Tills  Slate  sliall  ever  remain  a  mem- 
ber of  tho  American  Union,  and  all 
attempts,  from  whatever  scmrce,  or 
upon  whatever  pretext,  to  dissolve  the 


said  Union,  shall  bo  resisted  with  the 
whole  power  of  the  State." 

In  North  Carolina,  Art.  I,  Sec.  i : 
"That  this  Stale  shall  ever  remain 
a  member  of  the  American  Union; 
that  the  people  thereof  arre  a  part 
of  the  American  nation;  that  there 
is  no  right  on  the  part  of  the  State 
to  secede,  and  that  all  attempts, 
from  whatever  source  or  upon  what- 


i};!".]  rilOVISIONAr-   CONKKOKIIATK   CONHTITl'TlnN.  \H7 

On  l'\!l)ruiiry  4th,  18til,  a  congrcsH  of  di'lcj^'ivtcs  iipjioiiittid  by 
the  ((iiiveiitiona  of  the  Hecjeded  Stutt's  of  Soiitli  Carolina,  (icor^jia, 
I'lnrida,  Ahjl)amiv,  Mississi|)j)i  and  Louisiana,  met  at  Montj^onicn. 
Alaliania.  They  prt'iiarcd  and  achiptcd,  on  I'Vliriiary  Htli,  tiui  "Con- 
stitution for  the  Provisional  (Joverninent  of  the  Confedenvtu  States 
of  Anuu'ica."  This  vested  all  lef^islative  powers  therein  '•  dele- 
ijatcd "   "  in   the  Conjjress   now  assembled,    until    otherwise  or- 


I'viTpn'tPxt.  t<><lirt^olvoBnl(l  tTnlon.or 
tosi'MT  siiiil  Nation,  oiiglit  to  bo  ro- 
hi  loil  with  llin  wholi)  jiowor  of  tlic 
St:lti'." 

And  Art.  I,  Si'c.  r. :  "  Tlmt  every 
oili.'i'ii  of  tliirt  Stnto  owes  |inraniount 
alll'^'laIl(•o  to  tho  C'onntitiilloii  mid 
)j(i\<'niiiiont  of  tlio  Uiiitoil  Sliitcs,  and 
thai  no  law  or  ordlnanco  of  tho  Ktato 
in  i"ntrav(>nllon  or  Hulivornlon  thereof 
can  liavn  any  hinilint?  fon'o." 

Ill  Mississipiil,  Art.  l.Siv.  7:  "The 
iii;lil  to  wltlidraw  from  tlie  Federal 
I'liinii  on  aceoiint  of  any  real  or  Hiip- 
(iiiscil  ^?rlevnne(^  sliall  never  be  «h- 
KitiiKil  liy  this  State,  nor  ."hall  any  law 
In'  passed  in  deroRtttion  of  tho  para- 
niouiit  alleKlanco  of  tho  citizens  of 
tliis  State  to  tho  government  of  the 
I'lilti'il  Stall's." 

Ill  VIrKlnia,  Art.  I,  Sec.  2:  "That 
this  Kiate  sliall  ever  reiiinln  a  member 
of  the  United  States  of  America,  and 
tliat  llie  people  thereof  are  a  part  of 
till'  .Viiierlcan  nation,  and  that  all  at- 
I'Miipls,  from  whatever  sonrco  or  ujion 
wliati'ver  pretext,  to  dissolve  said 
uiiinn  or  to  sever  said  natiim  are  un- 
aiiiliorized,  and  ouijht  to  be  resisted 
with  the  whole  power  of  the  State." 

Alt.  I,  Sec.  ,•) :  "That  the  Constitu- 
tiiin  of  tlio  United  States  and  the  laws 
o" Congress  on.ssed  in  \  .rsuanco  there- 
of, constitute  the  suiin-mo  law  of  tho 
land,  to  which  paramount  allcgianco 
and  obedience  are  duo  from  every  citi- 
zen, anythinR  in  the  Cimstitution, 
ordinances  or  laws  of  any  State  to  the 
contrary  notwithstanding." 


Ill  West  VirKinlii,  Art.  I,  Sec.  1 : 
"Tlin  Stale  of  West  Virginia  is,  iind 
shall  remain,  oiii<  of  the  United  Slates 
of  .\mi'rica.  The  C'onstitiitloii  of  tlic> 
United  States  of  America,  and  the 
laws  and  tn-atios  made  in  pursuance 
thereof,  shall  be  the  su|irome  law  of 
the  land." 

In  Texas,  Ail.  I,  Sec.  1  :  "Texas  is 
a  free  and  iiide])eiident  Slate,  subject 
only  to  the  Ciuistitiuion  of  the  United 
States,  ami  the  m.iinlen.iiice  of  our 
free  iiiHtltutions  and  the  |ierpctuily  of 
the  Union  depend  upon  the  preserva- 
tion of  the  right  of  local  seir-gov(>rii- 
niciit  unimpaired  to  nil  the  States." 

In  Mls.'Ouri,  Art.  II.  Sec.  3  :  "That 
Missouri  is  a  free  and  independent 
State,  subject  only  to  tho  t'onstilutlon 
of  the  United  States;  and  as  tho  pre- 
servation of  the  States  and  tlie  main- 
tenance of  their  governments  are  nec- 
essary to  an  indestructible  Union,  and 
were  intendeil  to  coexist  with  it,  the 
Legislature  Isnotauthorl/ed  to  adopt, 
nor  will  tho  people  of  this  Slate  ever 
assent  to,  any  ameiidment  or  change 
of  tho  Constitution  of  the  United 
States  which  will  in  anywise  impair 
tho  right  of  local  self-government  be- 
longing to  the  people  of  this  Stale.  ' 

In  California,  Art.  I,  Sec.  ;i :  "The 
State  of  California  is  an  inseparable 
part  of  tho  American  Union,  and  tho 
Constitution  of  the  United  States  ia 
the  supremo  law  of  the  land." 

In  North  Pakota,  Art.  I,  Sec.  3: 
"Tho  State  of  North  Dakota  Is  an  in- 
separable part  of  the  American  Union, 


1,SS         ((INSTITI  TIONAI,    IIISTOIIY    OK    CONFKDKllACV.      [cilAI'.  II. 

dtviiiod.""''  N'iiraiicics  in  tlio  rupiVHuntutioii  of  iiiiy  Statu  were 
tilled  ill  sucli  inaiiuor  im  thu  proper  iiutlioritius  of  thu  Stat« 
dirni'tcd.''  ll  siiid:  ■•  I'litil  tlio  iimU},Mirivti()U  of  the  President,  all 
i)ills,  orders,  resoliilioiis  and  votes  iidopted  by  tlie  ("oiigress  siiall 
be  of  fidi  force  without  iipprovid  by  liim."'  After  tiie  inaiifjuiii- 
tioii  of  the  I'rcsithuit,  he  iiad  tiu!  same  veto  power  as  tiie  I'reai- 
dent  of  the  I'liited  States;  except  tlial  lie  was  authorized  t(i 
veto  separate  items  in  appropriation  bills/'  ('on},'ress  )iad  tlii' 
power  of  taxation  "for  (lie  revenue  necessary  to  pay  the  del>t« 
and  carry  on  the  (iovernnient  of  the  Confederacy.""  In  otiu'r 
respeets,  the  Provisional  ('oiij,m'css  had  tlie  same  powers  as  ,'i 
Congress  of  the  Unitiul  States,  excepting  legislation  over  the  tci- 
ritoriea  and  any  ceded  district,  none  of  which  tiicn  existed  in  tin' 
Confederacy,  and  the  appropriation  of  money  from  the  tieasiny. 
"unless  it  be  asked  and  estimated  for  by  the  I'resideiit  or  siiiin' 
one  of  the  heads  of  departments,  cxce[it  for  the  pur|)()se  of  paying 
itti  own  expenses  and  eoutingeneies." '  ICxpress  powers  were  also 
given  to  admit  other  States,  and  to  exercise  executive  powers  until 
the  President  was  inaugurated."  'I'lie  impoitation  of  African  ne- 
groes, from  any  foreign  country  otiier  than  the  slave-holdiiii,' 
States  of  the  United  States,  was  forbidden;  and  the  Congress  liail 
power  to  enforce  this  provision  by  legislation,  and  "to  prohibit  the 
introduction  of  slaves  from  any  State  not  a  member  of  the  Coii- 


-  Provisional  Constitution  of  tlio 
Coiifiiiinrncy,  Ail.  I,  See.  1  ;  Diivis, 
Uiso  and  Fail  of  tlio  Conl'odcriiti'  (Jov- 
orniniMit,  vol.  i,  p.  010. 

•'  Provisionul  Constitution,  Art.  I, 
See.  2. 


<  Ilild.,  Art.  I,  Spc.  2. 
■''Iliid.,  AH.   I,   Soe.  5.     Hoi)  infra, 
over  noti'H  ',V,\,  34. 

0  Il)id.,  Art.  I,  See.  6. 
'  Iliid.,  Art.  I,  Si-e.  7. 
8  Iljld.,  Art.  I,  Soi'.  0. 


and  tlio  Constitution  of  tlio  tlnitod 
States  is  tlios^iiiMoiiic  law  of  tlio  liiiid." 

In  Idalio,  Art.  I,  Soe.  3:  "Tho 
Stnto  of  Idaho  is  an  inseparalilo  jiart 
of  Ihn  Union,  and  the  Constitution  ot 
the  Uriiled  Slates  is  tlie  supremo  law 
of  flio  land." 

In  Wyoming,  Art.  I,  See.  37  :  "The 
StaU>  of  Wyoming  is  nu  insepaialilo 
purl  ot  tho  Federal  Union,  and  tlio 


Constitution  of  tlio  United  Stati's  Is 
tlie  puprcmo  law  of  the  l:ind." 

Alt.  XIX,  SiM'.  1:  "  The  following; 
articlo  shall  lio  irn-voeablo  without 
tho  consent  of  tho  United  States  and 
tho  peoiile  of  this  State : 

"  The  Stnto  of  Wyoming  is  iiii  iii- 
si"parai,le  part  of  tlio  Federal  Uiiinn, 
and  tho  (.'onstitution  of  tlie  T'liili'il 
Ktiiti'S  is  tlio  supremo  law  of  Hie 
land."    Si'e  iiijra,  §  38. 


I'lIilVlSKiNAI.   <'<)M'i:iH':i!ATr,   CnNSTlTITlHN. 


1s;» 


!iMlunicv."'-'  Tlu!  I'ri'.siilciit,  iiiul  N'icc-I'ii'siilfiit  wcif  clcclcil  liy 
CiPii'^'ii'S-i,  viitiiij,'  \>y  Stales.  IC.uli  wa.s  to  liolil  dllici!  fm-  one 
Mil.,  (IV  until  a  iifiinaiicnt  f^'ovoiiiini'ut  sIkiiiIiI  Iw  cstaliiisliKd."* 
Till!  coniiiciisation  of  tlic  I'residfiit  was  lixid  at  twcnt y-livu  tliou- 
.siinl  (lollais  a  year.  Tho  jiidlcMiil  j.it'V'-  was  vested  in  a  Supreme 
(■(lurt.aiid.  until  otherwise  provided  by  <  ij^'ress.  a  DiNliiet  Conrl 
in  each  Slate,  the  latter  court  with  "the  jurisdiction  vested  hy  tlie 
laws  of  (ho  T'nited  States,  as  far  as  ajuiiieable,  in  both  the  District 
1111(1  Cinint  Court  of  tho  I'nited  States  foi  that  State.""  It  pro- 
vidnl :  that  "'I'he  Supremo  Court  shall  be  coiisiituted  of  all  the 
ilisiiiet  judges,  a  majority  of  whom  shall  be  a  (juorum,  and  shall 
.sit  at  such  times  and  places  a.-*  the  Conf^re.ss  shall  api)oint."  ''■' 
••'I'iie  Congress  shall  have;  jxjwer  to  make  laws  for  the  transfer  of 
any  causes  which  were  pending  in  the  eourl.s  of  the  United  States 
t(i  the  courts  of  the  Confederacy,  and  for  tho  execution  of  the  oi'ders, 
decrees  and  judgments  heretofore  rendiu'cd  1)y  the  said  courts  of 
tliu  I'nited  States;  and  also  uU  laws  which  may  be  recjuisite  to 
|initect  tho  parties  to  all  such  suito,  ordei's,  judgments  nv  decrees, 
tlieir  lieiis,  ptn'sonal  representatives,  or  a.ssigus."  i^  This  Consti- 
tutiim  (!ould  be  amended  by  the  vote  of  two-thirds  of  Congress.'* 
Iliiiiected:  that  " The  (Jovernment  hereby  instituted  shall  taki^ 
immediate  steps  for  the  settlement  of  all  mattem  between  the 
States  forming  it  and  their  late  confederates  of  the  United  States, 
ill  relation  to  the  public  property  and  pid)lic  debt  at  the  time  of 
their  withdrawal  from  them  ;  these  States  hereby  declaring  it  to  l)e 
iliiir  wish  and  earnest  desire  to  adjtist  everything  pertaining  to  the 
coiiiiiu)ii  pi'operty,  conunon  liberty  antl  common  obligations  of  that 
anion  u[ion  the  principles  of  light,  justice,  equity  and  good  faith."  ''' 
I'liiil  otherwise  provliled  by  Congress,  the  sc^at  of  goverinnent  was 
lixed  at  Montgomery,  Alabama.'"  The  Constitution  was  to  continue 
ill  force  one  year  from  the  inauguration  of  the  President,  or  until  a 
])erMianent  constitution  or  confederation  between  the  States  should 
lie  put  in  operation.'"     In  other  respects,  the  instrument  was  a 


"  I!iM.,  Art.  II,  Soe.  7.  Tlio  object 
of  tlii^j  niut  tlio  correRponding  cliiuso 
in  till-  pi'rniunent  constitution  was  to 
ooiTcd  t|i(.  Ijordcr  nliivi>  States. 

'»  Ibid.,  Art.  II,  Sec.  1. 

"  Ibid.,  Art.  Ill,  Sec.  1. 


'■'  Ibid.,  Art.  Ill,  Sec.  1. 
"  Ibid..  Art.  Ill,  Sec.  1. 
"  Ibid.,  Art.  V. 
1''  Ilild.,  Art.  VI. 
"  Tbi.i.,  Art.  VII. 
"  Ibid.,  rroamble. 


190         CONSTITUTIOXAL    HIS'IHJUV    or   COSl'EDEKACV.      [cHAP.  II. 

Kuhstantial  copy  of  the  Constitution  of  tlie  United  States.  At 
tliiit  time,  nearly  all  expected  a  speedy  return  to  the  originul 
I 'iiiun,  and  for  tiuit  reason  the  paper  was  hastily  drawn,  with  the 
(il)juct  of  making  the  least  practicable  disturbance  with  the  exist- 
ing order,  exceijt  so  far  as  was  necessary  to  maintain  consistency 
with  the  theory  under  which  the  jiroceeding  w.os  justified.  The 
liret  act  of  the  Trovisional  Congress  was  passed  February  Utli,  1801; 
'•  That  all  the  laws  of  the  United  States  of  America,  in  force  and 
,  in  use  in  the  Confederate  States  of  America  on  the  first  day  of 
Novemlxir  last,  and  not  inconsistent  with  the  Constitution  of  the 
Confederate  States,  be  and  the  same  are  hereby  continued  in  force 
until  altered  or  rc^iealed  by  the  Congress."  '*  Tlie  next  ;ict, 
passed  February  14th,  continued  in  oflice,  until  A[)n\  1st,  all  oIK- 
cei-s  connected  with  the  collection  of  customs,  and  the  asststiint 
treasurers  entrusted  with  the  keeping  of  the  money  thus  collected, 
who  were  engaged  in  the  performance  of  such  duties  within  one 
of  the  Confederate  States,  with  the  same  powers  and  functions 
which  they  had  exercised  under  the  Government  of  the  United 
States.^®  On  February  Otb,  Jefferson  Davis,  of  Missis.siiipi,  was 
elected  President,  and  Alexander  II.  Stephens,  of  Georgia,  Vice- 
1  resident,  of  the  Confederacy.'-"'  On  the  15th,  Congress  passed  a 
resolution  dedaring  "that  it  is  the  sense  of  this  Congress  that  a 
commission  of  three  jjci-sons  \xi  appointed  by  the  President-elect, 
as  early  as  may  be  convenient  after  his  inauguration,  and  sent  to 
the  Govenrment  of  the  United  States  of  America,  for  the  purpose 
of  negotiating  friendly  relations  between  that  government  and  tlie 
Confederate  States  of  America,  and  for  the  settlement  of  all  ques- 
tions of  disagreement  between  the  two  governments  upon  princi- 
ples of  right,  justice,  equity  and  good  faith."  ^^  February  -i")th, 
an  act  was  passed  "  to  declare  and  establish  the  free  navigalinn  of 
the  Mississip.pi  River,"  wliieh  prevented  any  interference  witli  the 
passage  of  Northern  as  well  as  Southern  vessels  ujiou  that  stream  ;-'■ 
and,  on   Februarj-  2()th,  the   Congress   repealed   all   hnvs  of  tlic 


1*  Statutoa  nt  Larj/-!,  Pi-ovisioniil 
(iovornmont,  fonfodoralo  States  of 
America,  p.  27. 

"  Ibid.,  \n<.  27-28. 

-'  Davirt,  lliso  uud  Full  of  tho  Coix- 


fnderatn  Governmopt,   v.  1.   i,  p.  2S0. 

^'  Statutes  at  Lai-t:e,  rrovisiuniil 
(toveniineiit,  Coufederato  States  of 
.Viiieriea,  p.  292. 

--  Ibid.,  pp.  yO-3S. 


I'KOVISIONAL   CONFKDKKATE   CONSTITUTION. 


191 


1  nihil  Stiiti'S  which  required  the  enrollment  or  licensing  of  coivst- 
iiit,'  vcssL'ls,  and  imposed  discriminating  duties  upon  foreign  ves- 
sels or  goods  imported  in  tliem.^  Tims,  tiiere  was  no  interrni)- 
tioii  of  the  existing  business  relations  with  the  United  States,  and 
liioiins  were  taken  to  i^revent  friction  on  the  restoration  of  the 
L'nlon. 

The  permanent  Confederate  Constitution  was  adopted  March 
11th,  after  the  North  had  refused  to  accede  to  the  amendments  to 
the  Federal  Constitution  which  the  Sontli  demanded.  Even  then, 
when  the  more  sagacious  of  them  at  lea^t  must  have  foreseen 
the  (Linger  of  a  war  ^*  wliicli  would  necessitate  unity  and  strength 
in  tlie  central  government  where  the  command  of  their  armies 
wa,s  reposed,  the  Southern  statesmen  did  not  recede  from  the  theo- 
ries which  they  and  their  predecessors  had  advocated  for  the  gov- 
crniiicnt  of  the  United  States  since  the  time  of  Jeffei-son.  They 
did  not  realize  that  those  checks  upon  the  power  of  the 
central  government,  which  seemed  necessary  for  the  protection 
of  a  domestic  institution  maintained  in  their  owii  States,  and 
regarded  at  first  with  suspicion  and  subsequently  with  undisguised 
hostility  by  other  States  of  a  common  Union,  were  not  needed  in 
and  must  be  injurious  to  the  welfare  of  the  new  Confederacy  in 
which  all  alike  had  a  common  interest  in  its  preservation.  The 
[icrnianent  constitution  of  the  Confederacy  wtis  avowedly  modelled 
upon  the  C'onstitution  of  the  United  States,  with  a  few  cor- 
rections which  seemed  likely  to  secure  economy  and  prevent  wast© 
of  tiie  pul)lic  revenues.  All  other  changes  were  designed  to 
secure  tlie  interests  of  slaveholders  and  establisli  those  theories  of 
State  rights  for  which  they  ha      .,  long  contended. 

The  twelve  amendments  were  incorporated  into  the  main  body 
of  the  instrument,  and  the  stylo  of  the  new  government  through- 
out was  "The  Confederate  States."     The  I'reambie  road:  — 

' '  \yc  the  people,  of  the  Confederate  StatcK,  each  State  netiug  in  its 
Bovercigu  and  iudepeudeut  character,  in  order  to  form  a  permanent 
Federal  GorcDimenf,  establish  justice,  insure  domestic  tranquillity  and 


■-'  II)i(I.,  p.  38. 

-*  A  propliPtic  Bpeoeli  in  tlio  Cas- 
8mi(iia  vein  was  luiulo  liy  Alexaniler 
H.  Slepheus  before  the  Georgia  Con- 


vention, in  whleh  he  foretold  tlml  ile- 
teat  would  bo  followed  by  '■  uiilvciBal 
onianeipalion"  (MePhersoii,  Il'story 
of  Iho  KoboUiou,  p.  25). 


192         C0NSTrnJTIO>fAL    history    of   COXFRDEUACY.       [chap.  II. 

secure  the  blessings  of  liberty  to  ounelves  und  our  posterity,  iiivdl-biri 
the.  favor  and  guidance  of  Almu/hti/  God,  do  ordain  and  estaljlisli  ttiis 
Constitution  for  the  Confederate  States  of  America." 

The  legiKliitive  powers  vested  in  Congress  were  "delegated,"  in- 
stead of  "  granted."  "^  The  custom,  in  the  ^\"estern  States,  of 
allowing  immigrants  to  vote  before  they  had  been  naturalized, 
which  was  criticized  in  the  South  Carolina  (lecl.iration  of  inde- 
pendence, was  prevente<l  by  the  provision  that  the  eleetora  of 
members  of  the  House  of  llepresentatives  must  be  citizens  of  the 
Confederate  States,  and  that  "  No  person  of  foreign  birth,  not  a 
citizen  of  the  Confederate  States,  shall  be  allowed  to  vote  for  any 
officer,  civil  or  political,  State  or  Federal."  ^  It  directed  that 
senators  should  be  chosen  by  t!ie  legislatures  of  the  several  States 
"at  the  regular  session  next  immediately  preceding  the  com- 
mencement of  the  term  of  service  ;  "  and  Congress  had  no  power 
to  regulate  "  the  times  and  places  of  choosing  senatora."  ^  In 
addition  to  the  former  provisions  for  impeachments,  it  pro- 
vided, "  That  any  judicial  or  other  federal  officer,  resident  and 
acting  solely  within  the  limits  of  any  State,  may  be  impeached  by 
a  vote  of  two-thirds  of  both  branches  of  the  legislature  thereof." 
Congress  had  the  power  l)y  law  to  "  grant  to  the  principal  ofticer 
in  each  of  the  executive  departments  a  seat  upon  the  floor  of  either 
house,  with  tlie  privilege  of  discussing  any  measures  appertaining 
to  his  department."^  The  necessary  legislation  to  put  this  pro- 
vision into  effect  was  never  adopted,^  but  the  practice  prevailed 
in  the  provisional  Congress.'^" 

The  President  was  elected  for  a  term  of  six  years  and  was  not 
re-eligible.^'     No  person  was  eligible  who  was  not  "  a  natural  born 


25  Confcilorale  Coustltutiou,  Art.  I, 
Sec.  1. 

»>  Hull.,  Art.  I,  S(>o.  2. 

a'  lbi(i.,  Art.  I,  S,>f.  4. 

»  Ililil.,  Art.  I,  Hi-o.  fi. 

29  Davia,  RiBO  1111(1  Fall  of  tho  Con- 
fedor.aln  Govornini'iit,  vol.  i,  p.  200. 
Ho  was  of  the  opinion  (h;it  tlio  prao- 
tlco  ■would  have  boon  bonodolal.  The 
l)rovii7lon  was  the  work  of  Aloxamlcr 
H.  Slophens  (Constltulional  Vlow  of 
the  War  between  tlio  SlatoB,  vol.  U, 


p.  358).  The  point  will  bo  discussed 
subsoquently. 

*>  Wilson,  Division  and  Reunion,  p. 
244. 

»'  Confedornto  Constitution,  Art. 
II.  Tlds  arliclo  was  laiKoly  the  work 
of  R.  Baruwoll  Uhclt  of  South  Caro- 
lina, tlio  Chairman  of  the  ComniittoP 
upon  the  fornuitlon  of  this  Constitu- 
tion. Most  of  thn  oilier  (•lian};es  fnmi 
the  te.\t  of  thu  Fcnloral  Constitution 
wore  suggested  by  him,  except  those 


§37.] 


PERMANENT   CONFEDERATE   CONSTITUTION. 


1 !).'. 


cilizcii  of  tlie  Confederate  States,  or  a  citizen  tlicreof  at  tlie  time 
of  tlio  iuloption  of  this  Constitution,  or  a  citizen  thereof  born  in 
the  United  States  prior  to  the  20tli  of  Doceniljei-,  1800,"  the  date 
i)f  the  secession  of  South  Carolina,  and  "who  siiall  not  liave 
attained  the  ag;e  of  thirty-five  years,  and  been  fourteen  years  a 
ri'siik'nt  within  tlie  limits  of  the  Confederate  States,  as  they  may 
exist  at  the  time  of  his  election."  ^  The  amount  of  his  salary 
w:i!  not  fixed  as  in  the  jirovisional  Constitution.  lie  had  the 
|iii\vcr  to  veto  any  item  in  an  appropriation  bill.*'"  This  provisi(m, 
ulii(  h  was  also  in  the  provisional  constitution,  was  first  adopted 
liv  ihc  Confederacy,  and  has  since  been  copied  into  tlie  constitn- 
;icms  of  nearly  one-half  the  States  in  the  I'liion.**  The  disputed 
([ii.stinu  under  the  Federal  Constitution  as  to  the  power  rf  re- 
moval from  oflice  was  settled  by  the  provisions  :  — 

•'The  principal  olTieer  in  eaeh  of  the  executive  departments,  and 
all  persons  connected  with  the  tliplomatic  service,  may  be  removed  from 
ollice  :it  the  pleasure  of  the  I'rosideut.  All  other  civil  odieers  of  the 
executive  department  may  l)e  removed  at  nny  time  by  the  I'resident 
or  other  appointiiii{  power  wiien  their  services  are  unnccessarj',  or  for 
(lislionesty,  iucap.aeity,  inelliciciicy,  miseondiict,  or  neglect  of  duty; 
;uiil,  when  HO  removed,  the  removal  shall  be  reported  to  the  Senate, 
toiietlier  with  the  reasons  therefor."  "' 

'i'lie  frequent  evasions  of  that  part  of  the  Constitution  which 
ivi|iiires  tlie  consent  of  the  Senate  to  certain  appointments  to 
(ilU(  0  were  prevented  b}'  the  clause,  "  No  person  rejected  by  the 

iSeiiute  shall  be  reappointed  to  the  same  office  during  their  ensuing 

.  '•  .1(1 

'i'lic  Confederate  Congress  had  in  general  the  same  powei-s  as 
the  Congress  of  the  United  .States,  but  the  latiludinariaii  eonstruc- 
tidii,  under  which  iipprnpriations  for  internal  iniprovcincnts  and 
piciti'itive  tariffs  had  been  passed,  was  prevented  by  the  provision 


the  aulliorRliip  of  which  1h  stilted  in 
6ulise(iiieiit  uotoH  (Stephens,  Constltu- 
tii'uiil  View  of  tho  War  between  the 
Stall's,  vol.  il,  p.  358). 

'■  Ilild.,  Art.  II,  8oe.  1. 

"Ililcl.,  Art.  I,  See.  7. 

"  Tho  cITect  of  Biioh  a  provision 
will  111-  (liseussoil  aubsoquontly. 


i^lljlil..  Art.  II,  See.  i;  lUU  suIh 
jeet  will  1)0  (llseuHKoil  sulj.seiiiientl.v  In 
the  chiiptor  on  tho  Kxeeiitivo  PoHer. 

80  Il)ld.,  Art.  II,  See.  a ;  tills  siib- 
Joct  will  also  be  dlacussod  subao- 
quontly. 


ID4         CONSTITUTIONAL    HISTORY    Oi'    CONFKDKKACY.       [CHAI-.  II. 

tliiit  tilt!  [;(i\v.'r  of  tiixiitiou  sliould  be  liiniti.'d  "  for  revenue  necfH- 
xari/  to  p:iy  tin;  <ii;lits,  provii-U!  for  tlie  comiiion  (Ifftiiisc,  iiiul  ciirrv 
on  the  <;()veniiiu'iit  of  tlio  ('on federate  States;  hut  no  bounties 
shall  he  granted  from  the  treasury;  nor  shall  any  dutii's  or  taxes 
on  inipoitations  from  foreign  nations  be  laid  to  [iromote  or  foster 
any  branch  of  industry;"'  and  after  the  delegation  of  the  jJower 
to  regulate  coninieree,  it  WiUS  said  :  "  but  neither  this,  nor  any  other 
idause  contained  in  the  Constitution,  shall  ever  be  construed  to 
delegate  the  power  to  Congress  to  appropriate  money  for  any 
internal  iniprovcnu'iit  intended  to  facilitate  commerce;  except  fur 
the  purpose  of  furnishing  lights,  beat'ons  and  buoys  and  other  ;ii(l 
to  navigation  upon  the  coasts,  and  the  imi)rovcmeiit  of  hariiois 
and  the  removing  of  obstruct ion.s  in  river  navigation,  in  all  whiuh 
ciises  such  duties  shall  be  laid  on  the  navigation  facilitated  tiiere- 
by,  as  may  be  necessary  to  pay  the  costs  and  expenses  thereof.""' 
The  power  over  naturalization  was  "to  estai)lish  uniform  In.rii" 
inst',;ad  of  "  a  uniform  rule  of  naturalization  "  ;  '^  and  the  power  to 
pass  banlcriipt  laws  was  limited  so  tliat  "no  law  of  Congress  shall 
discharge  any  (U;bt  contraetod  before  the  passage  of  tho  same.*' 

Taxes  on  exports  were  permitted  by  a  vote  of  two-thirds  of  both 
houses,  so  that  in  an  exigency  money  could  Ik)  raised  by  a  tax  uu 
exported  cotton.  No  appropriation,  "not  asked  and  eslinmt<;d  f.)r 
by  some  one  of  the  luuids  of  departments,  and  submitted  tn 
Congress  by  the  PrcsidtMit,"  could  l)e  made  except  by  the  vote  (if 
two-thirds  of  both  houses  of  Congress,  unless  for  the  purpose  of 
paying  the  expenses  and  contingencies  of  Congres';,  or  for  the  iiav- 
ment  of  claims  against  the  Confedprah;  States,  the  justice  of  wliieli 
had  been  judicially  declared  by  a  tribunal  for  the  investigation  of 
claims  which  it  was  made  the  duty  of  Congress  to  dish.     It 

wius  provided  that  "all  bills  appropriating  .money  shall  specify  in 


"  Confcili-rnti'  Coiistiliilion,  Art.  I, 
Hoc.  H.  Most  of  llii'si^  pi-ovisioiiH  wcro 
!^iinn<'''t'''l  '',\'  Itiii'lt.  Itoliort  Toonilis 
of  (rcoiglti,  liowi'MM',  was  tlio  aiitlioi' 
of  till-  prohiliilioMs  iiiion  lioiint.ics,  I'x- 
tiii  (illinviitiiTs  iiiiil  inliMii.il  improvc- 
iiii'iits  ■  SlojiliciiH,  ('oiistiliitioiiul  View 
<if  t,lii>  War  between  the  Stateb,  vol.  11, 
1-.  Xa). 


"»  Ibid.,  Alt.  I,  Si>('.  8.  Till!  acute 
and  leannvl  aiitbor  of  Tho  Ilnpiililiidt 
UcpiililicH  has  criticised  this  as  an 
iiuuocossary  ulmndoniiiotil  liy  tins 
framors  of  tbi<  Conrndi-nid' Constltn- 
lon  of  0111'  of  tho  argiinu'iits  in  favcir 
of  the  rinht  of  seeossion  (-Ilh  cd.,  pp. 
;)1)H.  .'l'.)'.)). 

•«'  Ibid.,  Art.  I,  Sec.  8. 


S=i"-] 


•KUMANES'T   COXKKDEUATE   COXSTITUTION. 


195 


l'V'ili'i;il  (lUTuiicy,  the  exact  iimouiit  of  e;i;'li  iippropilitioii,  and  the 
|iiiiliose.s  I'ur  whicli  it  is  iiiiide ;  and  Coiigiess  shall  grant  no  extra 
coiiipeiisation  to  any  puhlic  contractor,  officer,  agent,  or  servant, 
iille'i'  sueli  contract  shall  have  been  made  or  such  service  ren- 
dcied;"'  ^"'  and  that  everj-  law  or  resolution  having  the  force  of  law, 
must  relate  to  but  one  subject,  to  be  expressed  in  its  title.  States 
were  permitted  to  lay  duties  "on  tonnage  "  "on  sea-going  vessels, 
I'ortlii'  improvement  of  rivei-s  and  harbors  navigated  by  the  said  ves- 
sels": provided  that  such  duties  did  not  conflict  with  any  treaties 
cif  tlie  Confederate  States  with  foreign  nations;  and  that  any  sur- 
plus revenue,  after  paying  for  the  improvement,  should  b;'  p:iid 
into  the  connnon  Ti'casury.'"  States  were  also  i>erniitted  to  make 
(•()iii[ia(ts  to  imi)rove  the  navigation  of  rivers  which  flowed  thnnigli 
two  or  more  of  them.''^ 

Till!  Confederate  Courts  luid  no  jurisdiction,  because  parties 
wcie  citizens  of  different  SUites;'*''  and  the  provision  for  the  re- 
turn of  fugitives  from  justice  was  exju'essly  limited  to  casi!S 
where  the  crime  was  connnitted  against  the  laws  of  the  State 
which  demanded  the  return.*' 

'I'lie  main  provisions,  however,  were  the  guarantees  of  slavery, 
wiiicli  were  thorough.  The  old  circundocutions  were  aban(h)ued, 
and  there  was  no  s(iueaniisbness  about  calling  a  slave  a  slave. 
The  Congress  was  expressly  forbidden  to  pass  anj'  law  denying 
or  iin[>airing  the  right  of  property  in  negro  slaves.'"'  (^itizens  of 
ciicli  State  were  secured  "the  right  of  transit  and  sojourn  in  any 
State  of  this  Confederacj',  with  their  slaves  and  other  iiroperty; 
and  the  right  of  proper!}'  in  said  slaves  shall  not  be  impaired." 
T.x  provision  for  the  return  of  fugitive  slaves  was  extended  so  as 
to  cover  tln)so  who  might  escaj)e  from  'I'cri'itories  as  well  as  States.''* 

The  importation  of  negroes  from  any  foreign  country  other  than 
the  slave-holding  States  or  Territories  of  the  I'nited  States  was 
expressly  f'>rbid(len.  Congress  was  directed  to  legislate  for  the 
enforcement  of  this  prohibition  ;  and  had  the  further  power  to  pro- 


^'Coiifodcrato  CoiisUtuUon,  Art.  I. 
Sec.  n. 

"  Il.M.,  All.  I,  Si'c.  10. 

'■-'ll.i.i. 

"Iliiil.,  Art.  Ill,  S.'c.  2. 

"IliiU.,  Art.  IV,  Si'i'.  a. 


«  Iliid.,  Art.  I,  Soc.  !). 

*''  Ilild.  South  Caroliiin iiinl  Floiiilii 
woro  opposiul  to  tlu'ni>  iMoliihitiiPim. 
(Niitioiml  Iiilcllijji'iicer,  Jliiirli  28Hi, 
18(U,    citod    by   Itliodi'.^,   vol.    Ill,    p. 


190  CONSTi'rrTIOXAI-    IIISTOIIV    of    (•ONI'KDi'.ItACV.       [CIIAV.  II. 


liihit  tliv  iiitrodnctioii  of  a  slave  from  nuy  State  "not  a  inenil)cr 
of,  or  any  TiTritory  not  bolonging  to,  this  ('onfeileraoj-."^"  New 
States  could  bo  admitted  only  by  a  vote  of  two-thirds  of  each  house, 
tlie  S(Miat(!  votinjT  by  States.''^  JiXjiress  power  was  f^ranted  for 
the  accjuisition  of  new  territory;  and  the  power  was  delegated  to 
Congress  to  legislate  and  provide  governments  for  the  iidiabitants 
of  all  territory  belonging  to  the  Confederate  State's,  lying  witliout 
the  limits  of  the  several  States ;  and  to  jierniit  tliem,  at  sueh  time 
and  in  sueh  manner  as  should  be  provided  bylaw,  to  form  States  to 
be  admitted  into  the  Confederacy.  "  In  all  sueh  territory,  the 
instituticui  of  negro  slavery,  as  it  now  exists  in  tlie  Confederate 
States,  shall  be  recognized  and  protected  by  Congress,  and  by  the 
territorial  government;  and  the  inhabitants  of  the  several  Con- 
federate States  and  Territories  shall  have  the  right  to  take  to  sueli 
Territory  any  slaves  lawfully  held  by  them  in  any  of  the  States  or 
Territories  of  the  Confederate  States."  Any  three  States,  acting 
tlirougli  their  conventions,  liad  the  right  to  a  convention  of  all  the 
States  summoned  l)y  Congress,  to  take  into  Cfinsideration  such 
amendments  aa  they  suggested ;  and  any  proposed  ameiulments 
agreed  on  by  such  convention,  voting  by  States,  and  ratified  by 
the  legislatures  or  conventions  of  two-thirds  of  the  ;>- veral  Stales, 
were  to  become  thenceforth  a  part  of  the  Constitution.  ]»ut  no 
State  could,  without  its  consent,  be  de2)rived  of  its  equal  "  repre- 
sentation" in  the  Senate.'"'  The  government  established  by  tlie 
Constitution  was  declared  the  successor  of  tlie  I'rovisional  (iov- 
ernment.  All  laws  passed  by  the  latter  were  continued  in  foree 
until  repealed  or  niodilied ;  and  all  oiUcers  appointed  by  the  same 
remained  in  olliee  until  their  successors  were  appointed  and  quiili- 
fied,  or  the  ollices  abolished.™  The  Constitution  was  to  be  in  foree 
upon  its  ratification  by  the  conventions  of  live  States ;  but  until 
the  election  and  meeting  of  the  new  ("ongress,  the  Provisional 
Congress  were  authorized  to  "  continue  to  exercise  the  legislative 
power  granted  them,  not  extending  beyond  the  time  limited  hv 
the  Cor;stitution  of  the  Provisional  Goverinnent." '■' 


"  C"onf«'(li>i;it(>  ConsUtution,  Art.  I, 
Soo.  8.     8i'f  Hiiprn,  nolo  !). 

"  Iliid.,  Alt.  IV, Hoc.  3.  Thisclausn 
was  drawn  liy  Jolin  Perkins,  Jr.,  of 
Loultiiiinu    'Slejilions,    Constitutional 


View  of  tlie  War  between  the  States, 
vol.  il,  p.  ;i3S). 

"  Ibid.,  Art.  Ill,  Sue.  3. 

'■"  Il)id.,  Art.  VI. 

"  Ibid.,  Art.  VII. 


§  37.]  I'EKMANEXT   CONKEDEKATK   CONSTITUTION.  1!)7 

'I'lio  Confetlerate  Constitution  was  riitiliod  in  most  States  liy 
tlir  saiiio  Conventions  whieli  had  passed  the  ordinances  of  secession. 
Ill  (u'orsjfia,  tlie  convention  defeated  a  proposition  to  submit  it 
to  tlie  people.  In  Tennessee,  it  was  submitted  to  the  people  and 
ajj^rovud  after  it  had  been  ratified  by  the  Legislature.''-  Vir- 
iriiiia  and  Tennessee,  through  commissioners  appointed  in  the 
foiiiier  .State  by  her  convention,  in  the  latter  by  her  legislature, 
eiiterid  into  what  was  termed  in  Virginia  a  convention  and  in 
'IViiiies.see  a  military  league,  by  which  their  rcsfiective  military 
fiiices,  arms  and  supfdies,  were  placed  under  the  direction  of  the 
I'lcsiilent  of  the  Confederacy  until  an  ordinance  of  .secession  and 
a  ratiiication  of  the  Confederate  Constitution  could  be  adopted. 
A  similar  transaction  took  place  between  the  connnissioners  ap- 
pointed by  the  rump  legislature  of  Missouri  and  the  Confederate 
(iovernment."''' 

The  lirst  act  to  provide  for  the  defense  of  the  Confederacy  was 
that  of  the  Provisional  Congress,  February  28th,  1801,  in  which 
it  wus  provided  — 

"'i'luit  tiic  I'resideut  be  further  authorized  to  receive  into  tlie  services 
of  this  government  such  forces  now  i  i  the  service  of  such  States  i.s 
limy  be  tendered  or  who  mny  be  vohuitccred  liy  tlie  consent  of  their 
Stato,  in  such  numbers  as  he  may  require,  for  any  time  not  less  than 
twelve  months,  unless  sooner  discharged.'"'* 

On  ]\Iarcli  Gtli,  1801,  a  law  was  passed  to  establish  and  organize  a 
jici  inanent  army  of  the  Confederacy,  as  distinct  from  the  iirovisional 
army  for  which  provision  was  made  in  the  last-named  statute, 
'i'lie  number  to  be  i-aiscd  was  nine  tliousand  four  hundred  and 
twenty.  OHicers  who  left  the  army  of  the  United  States  received 
tJie  same  relative  rank  in  the  Confederate  army  whicli  they  had 
lii'ld  in  the  former.^ 


•''-  JloPhorsou,  Hititoi-y  of  tlio  Un- 
lielliou,  pp.  1-5.  Davis  said  that  it 
w;is  siiliniiltci!  to  iiuti  riitlflod  by  tlie 
\>'■|>]:U^  of  tlie  rospoptive  Statos  (Riso 
iirid  Fall  of  tlio  Coufoderato  Govorii- 
iiiciit,  vol.  i,  p.  23S).  But  ho  evidontly 
(•uMsiikM'od  tho  ju'tion  of  tlioso  con- 
vi'iitlons  llio  action  of  the  people. 

■■■'  llri'licrsoii,  lli.slory  of  tlio  Ec;- 
bollioii,  pp.  D,  8,  11.    Duvla  ^Iti60  and 


Fall  of  tho  Coufodorato  (iovi-:  ninoiit, 
vol.  i,  p.  20!))  said  that  tin  -o  i  roi-oed- 
iiigs  weieronstilutional  bi'foro  I  ho  sn- 
cession  of  tho.so  States  under  Arliclo  I, 
Hootion  10  of  tho  Fodoral  CoiisiiUition, 
bocaiLso  th(>y  wiTO  "in  siu  li  iniiiiliieut 
dangor"  as  would  not  adiiut  of  dolay. 

^*  Davis,  Ri,-oand  Fall  of  tho  Cou- 
fodorato (lovi'inmoiit,  vol.  i,  p.  304. 

'■^  Ibid.,  pp.  306,  307. 


198         CONSTITrTloyAL    lirSTOllV   of   CONFEDKUACY.      [CHAl'.  II. 


The  weiikiH'.ss  in  time  of  war  of  a  conatitutiiin  full  of  guarantiis 
of  pci'soiial  liln-rty  aiul  cliucks  iijiou  tlu'  powers  of  the  {foveriiiiieiit 
is  iiianifest  in  the  history  of  the  Confederaey.  I'he  eonstitutiomil 
ohslrnc.ions  to  direct  taxation  made  it  almost  impossihlo  tn 
collect  the  funds  necessary  for  military  operations,  exiu'pt  liy 
borrowing  through  the  negotiation  of  bonds  and  the  issue  of  a 
paper  eurreney.*^  The  passage  of  a  legal-tender  law  was  pre- 
vented by  constitutional  objections  in  the  minds  of  the  President 
and  (^ongress.''"  'J'lie  governor  of  Cieorgia  vetoed  a  bill  to  make 
Stale  taxes  payable  in  Confederate  currency,  amongst  other  rea- 
sons, because  he  thought  it  violated  tlie  constitutional  [irohibitinn 
against  making  anything  but  gold  or  silver  a  legal  tender.'*"  Other 
governors  assisted  the  Confederacy  b}'  approving  bills  which  made 
a  tender  of  Confederate  and  State  bonds  and  th(!  notes  of  State 
banks  sullicient  to  stay  executions;'''-'  and  in  Florida  it  was  enacted 
tluit  a  refusal  to  accept  Confederate  cuiTency  should  terminate  an 
exemption  from  military  service.'''*  A  tax  upon  the  eircul  ition  of 
Confederate  currency,  accompanied  by  provisions  for  ftniding  tlie 
same,  was  subsequently  passed  by  the  Confederate   Congress  and 


f'"  Davis,  Rise  and  Fall  of  the  Con- 
frdonili!  (iovcrnmont,  vol.  i,  p\\  4'.).1- 
•100.  "So  loiifj  US  tlipro  sri'inocl  to  lio 
a  proliiihllily  of  lii-iiif?  able  to  carry 
out  those  inovlsionrt  of  tlu>  Coimtitu- 
tioii  fully,  anil  in  contorniity  wllli  the 
inteiilioMS  of  its  authors,  there  was  an 
obvious  (lifllculty  in  framing  any 
Byslcni  of  tiixation.  A  law  wliieli 
t-hoiill  exempt  from  the  burden  two- 
thliils  of  llio  i>roperty  of  the  country 
would  be  a.s  unfair  to  the  owners  of 
tl'.e  reiiiainln;.^  Ihinl  as  it  would  be  lii- 
a(le(iuale  to  meet  the  reciuireuuMits  of 
tli(>  public;  service.  The  urgency  of 
Uio  need,  liowever,  was  such  that, 
after  f;reat  embarrassment,  the  law  of 
Ajiril  '2tth,  isr.u,  uliovo  mentioned, 
was  framed.  Klill  a  larf^o  iiroportion 
of  these  sources  was  unavailalile  for 
sonio  lime,  and  the  Intervening  ex- 
igencies perndtting  of  no  dehiy,  a 
resort  to  turtlior  issues  of  troasurj- 


notes  became  unavoidable."  (Ibid., 
p.  41)0.) 

"Within  six  months  after  the  pas- 
sages of  the  war-tax  of  Aiigust  I'.ilii, 
ISt'il,  the  popular  aversion  to  taxation 
by  the  general  government  had  so  in- 
lluenced  the  legi.siation  of  the  several 
Statesthatonlyiu  South  CaroUna.Mi?- 
sis.'^ippi  and  Texas  were  taxes  actually 
collected  fro!u  the  people.  The  (|Uo;aa 
from  the  remaiidug  States  luid  been 
rai.sed  by  the  issue  of  bonds  and  St:itc 
treasury  notes.  The  public  debt  of 
the  country  was  thus  actual  lyincreasc'l 
instead  of  bi'lng  dindnished  by  llio 
taxation  imposed  bj- Congress."  (Ibid., 
p.  49,'-). ) 

"  J.  C.  Schwab,  The  Finances  of  (ho 
Confederacy,  a  valuable  monograph, 
Pol.  Sc.  (Jmir.,  vol.  ii,  pj).  4;)-r>0. 

<•»  Dec.  15,  1803;  ibid.,  p.  51. 

'■'I  Ibid.,  p.  51. 

«"  Florida  Act  of  Dec.  3,  1803  ■,  ibid., 
p.  51. 


.]       TAXATION,    IMI'UESSMP2NT,    AND   8KQUESTUATION. 


109 


iiisl!l'u(l  under  tlie  tax  [inwer  against  constitntioiml  objections ."^ 
Kiiiiilly,  iigainst  tlie  protests  f)f  many  leaders  of  tli;;  jieopli^"-  tliey 
were  obliged  to  resort  to  a  pnn^tiec  to  wbieli  Wiisbiiigtoii  was 
(biveii  during  tbe  revolution,''-'  and  iin  aet  v/as passed  Miinli  :20th, 
]Sii:'>,  -wliicli  authorized  the  impressment  of  j>ropert\'  of  all  kinds, 
ii'.clnding  slaves,  needed  for  military  operations,  Avith  ccu'tain  ex- 
ciiiptions,  at  arbitrary  ])riees  lixed  by  joint  eommissioners  ap- 
pninti'd  l)y  the  State  and  the  Confederacy,  or  in  certain  eases  by 
iipjiraisers,  upon  payment  in  certificates  of  indebtedness.'''  This 
jiractice  was  the  cause  of  many  desertions  from  their  canse."^  'I'he 
Supreme  Court  of  Creorgia  once  issiied  an  injunction  against  the 
impressment  by  the  Confederate  army  of  a  hotel  for  use  as  a 
licispital.'"' 

On  August  ()tli,  18(!1,  an  aet  was  passed  "  for  the  sequestra- 
tion of  the  estates,  jjroperty  and  effects  of  alien  enemies,  and  for 
thi:  indeuuiity  of  citizens  of  the  Confederaie  States,  and  persons 
iiidiiig  the  same  in  the  existing  war  against  the  United  States." 
I'lider  this,  which  was  subsecjuently  held  by  the  courts  of  the 
United  States  to  be  voiil  as  an  infringement  of  the  Federal  Con- 
stitution,''' debts  due  to  citizens  of  tlie  free  States,  the  border 
.slave  States  being  expressly  excepted,  and  to  all  pei'sons,  irrespec- 
tive of  their  citizenship,  who  aided  the  Uiutcd  States,  were  confis- 
cated. Nearly  two  millions  of  dollars  were  collected  from  this 
source.''*  Obedience  to  the  law  was,  however,  refused  bv  many 
uiuhr  the  claim  that  it  was  an  infringement  of  the  Confederate 
Constitutiou  ;  ami  the  celebrated  Petigru,  whose  position  at  the 


'■'  Ilii.l.,  p.  no.  S'"i'  Davirt,  Risnniiil 
Fiill  <i1  llic  t'diifcdoralo  (ii)voninipnt, 
vol.  i,  PI).  4S<)-1!)2. 

'■'- Vil!(^-rlvsi(I(>Ilt  Aloxanrtor  H. 
Stcplii'iis  proti'stcd  npiiiiist  (IiIh  prac- 
li('(>  (Consliliilioiml  Viow  of  iho  War 
liclwi'iMi  t.lin  States,  vol.  ii,  p.  r>70). 

"'  Si'o  I  111!  I'cmai'k.'^  of  fiovcriior  Clin- 
ton ill  tli«  Ni'w  Yorl;  Convontion  of 
nilillcT.Uon  (Eiliofw  Drbatof^,  2<1  od., 
vol.  ii,  \K  IlfiO),  and  of  (iniyson  in  tho 
Viij^iiiia  Convention  (iliid.,  vol.  iii,  p. 
'JllOl. 

''  Tlii.s  is  reprinted  in  Chase's  De- 
cisions, p.  597. 


o'"  Alexander  H.  Stephens'  testi- 
mony liefore  the  .Toint  Comniittee  on 
Ilnconstnu'tion  i  Report  of  that  Com- 
mittee, Part  III,  p.  l(i.">). 

«o  While  r.  Ivey,  HI  Cm.,  180. 

"  Willi.inis  r.  BnilTy,  UG  U.  S.,  176; 
S.  C.  102  r.  S.,  '2-48;  Stevens  v.  Grlf- 
lith.  111  U.  S.,  18. 

'"  The  amount  coUoeted  up  to  Sept. 
ao,  lH(i:t,  was  #1,8C2,,''),")().'27,  as  reported 
by  tl-e  Confederaie  Seeretary  of  tho 
Treasury  ( Mid'herson,  History  of  the 
Rebellion,  pp.  203,  20,')).  Tlio  law  is 
reprint(!d  lu  Chase's  Decisions,  p.  684. 


200 


CONSTrTUriOKAh    IIISTOUV    OK   CONKKDIOKAI^V.       [cilAP.  II. 


Ii.ir  11.  till'  South  wiLs  similar  U>  lliat  of  t'liarli's  OX'ouor  in  ilir. 
N'oilli.  k'd  a  vi},'i)nius  oppusition,  in  wliiuli  lie  was  luuilly  dvoi- 
iuIlmI  hy  till!  onui'ts.''"  Oil  tlio  recoinineiulation  of  Congress,  the 
Stiites  ffded  to  the  Confederacy  all  the  land  and  other  propurty 
of  the  United  States  within  their  jurisdictions.  This  included  the 
sum  of  «");!(!, 000  in  coin  at  the  New  Orleans  mint  and  eustoni- 
iioiise,  for  which  the  State  of  Louisiana  received  a  vote  of  tiianhs."' 

It  was  found  necessary  to  regulate,  if  not  ri'strain,  the  liberty 
of  the  press  hy  an  act  jiassed  in  Januaiy,  iSfJiJ,  wliich  forbade, 
under  the  jienalty  of  a  (ine  of  one  thousand  dollars  and  one  y;iu".s 
itnprisonment,  tlie  publication  of  news  concerning  the  ntiinhfr, 
disiiosition,  movcuKMit,  or  dislvibution  of  the  land  or  naval  forofs, 
or  a  description  of  vessels,  battery,  forlilieation,  engine  of  war,  or 
signal,  unless  lirst  authorized  by  the  I'lvsideiit  or  Congress,  or  the 
secretary  of  war  or  navy,  or  commanding  oilicer  of  post,  district 
or  expedition;"'  and  in  the  same  year  to  jiass  a  bill  to  "regulate 
the  destruction  of  jiroperty  umler  military  necessity."  "^ 

The  Confederate  (iovernment  was  obliged  to  follow  the  oxaiii- 
plu  of  the  United  St:iti'S  by  a  conipulsoiy  draft  of  soldiers  nniite 
by  the  authorities  at  Ikichmoiid,  inider  an  act  i)i  the  ConftnU'iMte 
CongressJ^  The  conscription  was  vigorously  oppiwed  by  the  State 
authorities  and  high  Confeihirate  oHiiers,  ujjon  tiie  ground  tiiat  the 
ContVder.itc  (iovernment  had  no  siiidi  constitutional  poweis,  aivl 
that  drafts  could  only  be  made  by  the  Slate  authorities.  The 
arguments  f(U'  and  against  the  right  were  similar  to  those  used  at 
the  same  time  in  tlu;  North."*     The  subsequent  eonscriptiou  1  i\v, 


•"  An  iiUorosUni?  ri>|inrt  of  lii.s  nr- 
guinoiit  is  to  lji>  foiiiul  ill  Mi-PhiT.'-oirs 
Ili.sloi-y  ot  lliu  lt(>li«'llioii,  pp.  '21)."),  aOC. 
Tin-  lliiMl(M'i;iioiis,  sen  Kii'liiiioiiil  K.\- 
luiiiiii'r,  Oct.  11)  iind  Nov.  8,  ISCil; 
Rii-lii\ion<l  WlilK,  Nov.  H,  IHlil ;  Hii- 
viiuiiiili  Itopiililiciin,  Dec.  -21,  l.S(!l; 
CJiarli'sUiii  (.'oiiricr,  Oct.  '23,  ISIH  ;  ciU'il 
hy  Kliodi'.s,  History  ot  lln!  Uiiited 
Stales,  vol.  iii. 

">  Iliid.,  vol.  iii,  p.  3'22. 

'1  Mi'Plii'i-.«oii,  Ilislory  ot  tlw  Rc- 
iiellioii,  p.  117. 

•-Ii)id.,  p.  117. 


rdiruary,  1801.  Alistracts  ot  Ihrso 
an;  piililishcd  in  5IcI'1ioi'so:i'h  IlisUiry 
of  till)  K.'liollion,  pp.  117  119.  The 
llrst  act  is  ri'pi-int<'d  in  Cliasc'H  Do- 
cisioiiB,  11.  571). 

'•*  Hoc)  llio  vi'i-y  nlilo  a.  .;iini('iit  in 
tlio  lot  lor  of  Ji'0'ci-son  Davis  in  answer 
to  tlio  con.stitiilioiiiil  oiijcelions  ot 
Govonior.Josoiili  K.  Drown,  of  Geoiyiii, 
datod  May  '20,  18(12,  tlio  slylo  of  wliicli 
is  eo  logical  and  toinporatc,  ami  in 
that  rcsjiecL  k)  illffcront  from  tlio 
otiier  wi-ilin.uts  ot  Jeri'ovKon  Davis.  a8 
to  siigf^ost,  tho  snspicion  that  it  v.as 


"  Si'o  lu't  of  April  Ki,  1HG2  ;  act  of      llio  v.-oik  of  hi-s  attorucy-gouorul,  lliat, 


§^57.] 


STATE   KKillTa. 


201 


ulii;li  iiniiullod  the  stivtutoiy  rii^ht  to  exeinptio:!  from  iiiilit;irv 
ftrvico  obtiiiiiL'il  l)y  tlio  i)iiivlmsu  of  Bul).slitutL's,  was  likewisu  vi^'- 
oroiisly  iittiirki'd,  liut,  w;is  .siip[)')i'tt;(l  hy  tins  tli'C'isioiis  of  llui  lii'^li- 
est  ((iiiris  of  N'irgiuia,  Nortli  Carolina,  (ieorj,Ma,  and  .Maliaiiiii.'' 

!t  \v:is  lit'ld,  liowever,  that  tlio  ('oiiffdorate  yo\i  riiiiu'iit  liad  no 
|]ii\vii-  to  draft  any  State  od'u'cf,  not  ovtn  a  policcMian  or  a  justice 
iif  tilt'  j)L'a(x'.^''  Tlio  disoluirgo  by  St:ite  I'oiut.i  of  consoripls  by 
Wilts  of  liaboas  corpus  was  counnon."  it  was  lu'ld  that  u  Cou- 
fnlcrak!  soldiur  was  not  i;xoiii])t  from  arrest  on  civil  i)rocLSs."8 
Muili  friction  was  also  caused  by  the  objections  of  the  militia 
to  serve  under  olHcers  of  other  States,'"  and  at  one  time  the  gov- 
ernor of  Mississi[)pi  refused  to  order  them  to  leave  the  State.** 
The  doctrim!  of  State  rights  was  also  a  formidable  obstruijtion 
to  till!  military  operations.  It  was  said  of  Davis,  by  one  well 
qualilicd  to  judge  him,  that  he  was  a  man  of  narrow  views  of  con- 
sliliitioiial  construction.   "  A  straw  of  construction  across  his  path 


I'ininciit  lawyer,  Judali  V.  Benjamin, 
Ii.  is  r,.piiiitt'il  In  lull  In  DavU-,  Ulso 
iiuil  fall  of  llio  Confodoralo  Govcru- 
iiu'iil,  |ii).  G  '."i  514. 

Tills  nioasiiro  was  also  vigorously 
opi'Oscil  liy  Alexnudor  II.  Stephens, 
1/otli  on  eoiiKtitutioual  groumls  and 
on  tlio^o  of  ("xi>odieiicy  (Constitu- 
lutimiiil  View  of  tlio  War  lieUveon  tho 
Stall's,  %ol.  ii,  pp.  570-574,  700,  791). 
Tliis  conntiUitiuiuil  qui'Stlou  is  subse- 
ciiiciuly  (iisciisscd  ill  the  ohaplor  on 
the  war  powers  of  I  ho  UuiU-d  [slates. 

■■' r.iirrowtih.s  r.  reytoM,  1(1  (inittan 
tVii.;,  470;  Gnt'.in  r.  Walton,  1  Wiii- 
sti.u  ,X.  C.i,  ;i;j:l;  Paly  r.  Harris,  33 
(ja.  K.ipp.  3:i;  /■,'.(:  jitirk.  llcCaiils,  38 
Al;i.,  107.  This  siilijci'L  will  bo  dis- 
iii-si'd  Kiibsi'(iueiitly  under  the  War- 
I'owir  and  Iiiipiiiniieut  of  tho  Oblina- 
lic.M  V  f  Coiunu'ts. 

■•  Aiidri'ws  r.  StrouK,  33  Oa.  Supi)., 
li'.il;  .lohiistoii  r.  Mallctt,  2  Winston 
(N.  ('.),  13;  ]5niroii.;lis  r.  Teyton,  Ifi 
Grall/ui  (Va.  ,  470,  4H3. 

"  Matter  of  Ilryiin,  1  Winston  (N. 
C),  1;  Matter  of  (luyi'r,    1   Winston 


(S.  C),  (10;  Matter  of  Hitter,  1 
Winston  (N.  C.  ,  7(1;  Mjitter  of  Hine, 
1  Winston  (N.  C),  1(.."> ;  M.Uter  of 
lioydeii,  1  Winston  (X.  C),  175;  Jfat- 
ter  of  Curtis,  1  Winsti.n  (X.  C),  ISO; 
Matter  of  Took,  1  Winston  (X.  C), 
IMG;  Matter  of  I'rinee,  1  Winston 
(N.  C),  1!)5;  Matter  of  Hunter,  1 
Winston  (X.  C),  447;  Matter  of  Wy. 
rick,  1  Winston  (X.  C),  4.TO ;  Matter 
of  linidshaw,  1  Winston  (X.  t'.  >,  454; 
Jlaller  of  Soniers,  1  Winston  i  N.  C), 
459;  Matter  of  lliissell,  1  Winston 
(N.  ('.),  403;  Matter  of  CuuninKiin, 
1  Winston  (X.  ('.),  (1(14;  Jolinstou  v. 
Mallett,  2  Winston  (X.  ('.),  13;  Vp- 
ehurch  v.  Scott,  2  AVinstou  (,X.  ('.  i, 
137;  Cobb  r.  Stallin^'s,  ;t4  Ga.,  72;  Kx 
piirtc  Cain,  39  Ala.  (X.  S.),  440;  Kx 
parte,  Graham,  13  Law  and  12  Kq., 
Kich.  iS.  C.\  '277. 

"  K.r  purlin  Harlan,  3!)  Ala.,  X.  S., 
5(13. 

■■'  Davis,  Itise  and  Kill  of  the  (^)n- 
fedeniti' Governnicnl,  vol.  i,  p.  544. 

•''  Cox,  Three  Decades  of  Federal 
Logislatioii,  p.  312. 


202  CdNsr;  II  TIONAI,    IMSTOIIV    ok    COSKKDKItAfY.       [CMAI'.  II, 


would  stcpji  liim  from  tlic  most  (liiilinij  uisli  of  liis  licart." "'  At 
tlic  out-ctof  till'  \Mir  li(!  could  ])roltiilily  ]i.i\v.  seized  AViisliiiij^'toii 
liiid  lie  not  lii'i'ii  unwilliiit,' to  iiiviide  tin- soil  of  X'irLjiiiit  and  Miirv- 
land  during  their  delilxanitions  over  .sfi'essiou."^  He  contiiiimllv 
vetoiMl  war  moasuros  hecauso  lio  thought  tliom  undonstitulidtial. 
]5ut  i\\('.  State  governors  considered  him  a  dangerous  latitudiniiriaii. 
<tovcriior  Vance  formally  threatened  to  call  out  the  State  milili  i  tn 
i'csist  the  unconstitutional  acts  of  the  Confederati!  govci'umciit  dii 
North  ( 'arolina  soil.""  A  conference  of  State  governors  was  plaiiiKMi 
in  order  to  organize  op))osition  to  him.*'''  Onci;  when  (ieneral  Lcii's 
orders  were  ohstrueted  ])y  the  attenipts  of  local  authorities  in 
North  Carolina  to  coniiiel  his  ohsei'vaiicc!  of  their  quarantine  rci^'ii- 
lationa,  he  said  that,  although  while  the  town  was  in  existeure  lie 
uiiglit  perhajis  lie  obliged  to  resjjeot  its  quarantine,  if  there  wiis 
further  trouble  he  would,  as  an  act  of  military  necessity,  Ix;  obliged 
to  order  all  iidiabitants  to  leave  tlie  jdace."'' 

The  convention  of  Virginia,  in  July,  1X(!1,  ])assed  an  ordiniiice 
which  j)rovided  that  any  citizen  of  the  Slate,  holding  ollice  iwuler 
the  (iovernment  of  tiie  United  States  after  tlio  first  of  July,  IHfil, 
with  the  exception  of  tho.se  holding  ollice  outside  of  the  I'niti'd 
States  and  ( 'on fed(>rate  States,  (qxin  whom  it  did  'lottake  effect  until 
lifter  July  1st,  1H()2,  should  lu'  foiover  Imnis'ied  from  the  Stale; 
and  that  any  citizen  thereafter  undertaking  to  rejjresent  the  Slate 
in  th<.'  Congress  of  the  United  States,  should,  in  addition  to  ban- 
ishment, lie  liable  to  Ik-  ])unished  by  the  confiscation  of  his  jiioj> 
t'rly,  and  be  guilty  of  treason.*'  On  August  14tb,  18(!1,  President 
T>avis  issued  a  proclamation  requiring  every  male  citizen  of  the 
United  States,  fourteen  years  of  age,  then  within  the  Confederate 
Slat(!s,  who  adlu'red  to  and  acknowdedged  tlie  authority  of  tlie 
Unitecl  States,  and  wa..  I'ot  a  citizen  of  the  Confederac}',  to  de- 
part from  the  Confedei-att  States  within  forty  days.  The  border 
slave  Slates  were  excepted  from  tliis  proclamation.^' 


'I  Ti'slitiidiiy  of  John  ]i.  ]!;il(l\vin, 
Si>on]iiMiif  till'  Virt!iuiii  lIoiisiM.f  Dclii- 
piitos,  Ipcforc  tin'  .iDiiil  I'oiniiilttc'O  on 
Kocoiirttnictioii,  rail  II,  p.  107. 

''■•' Klioilcs,  Illstoiy  of  tliu  Uniti!(l 
8tato8,  vol.  ill,  lip.  ;i"4-;i«l. 

"■'Cox,  TliiTi'  D(?ciuic's  of  Federal 
Li'tilsliitlou,  p.  ;tl2. 


"  Ibid. 

'■•'•  This  Ktory  was  told  tho  wrltoiliy 
a  r/ontcdoratc  olllcer. 

■■'  llcl'liorson,  History  of  the  lle- 
lii'lliim,  II.  8. 

I'  Ibid.,  p.  121. 


^■'"■1 


MAirriAi,  i,A\v. 


208 


111  Davis'  iiiaupiiriil  at  tlio  institution  of  llieir  pennaiicnt  con- 
stitution, Fcbiuiiry  2:2(1,  18(i2,  lio  siiid  :  — 

" 'I'liroiifjli  nil  tliu  in'pcHniticH  of  an  uiit'(|iinl  Htrugj^le,  there  linn  been 
no  ;irt  oil  our  part  to  impair  pcrHonal  lilicrty  or  tlu!  fii'cdoiii  of  spt'ccli, 
(if  tliniii;iit,  or  of  tilt!  ])r('SH.  Tiie  PoiirlH  iiavc  liccii  open,  tlic  jiuliciiil 
fiiiictioim  fiiilj'  pxcciiti'd,  anil  every  rifilit  of  the  peiieefiil  citizen  niaiii- 
tiiirii'd  iiH   Hccurely   us   if   u  war  of    invaHion   had   not  dlHtiiilied   the 

iMIld."'- 

W'itiiiii  live  days  lie  approved  an  act  wliieli  antliorizeil  the  sus- 
liriision  of  tlie  wi'it  of  habeas  ('orpns.  Oii  iMarcli  first  lie  phieed 
i;i. 11111(11111  under  martial  law,  and  jiassports  wen^  retjnired  fioni 
ilin-^t,'  who  wished  to  enter  or  leav(!  llie  Confederate  eupital  until 
liis  troveriiiiu  nt  aliandoned  it.**'''  Two  later  acts  extended  his 
piiwiTs  in  tiiis  respect,'"'  under  which  ailiitrarj'  arrests  were  made 
tliiMi'.irliout  the  w  hole  Ctmfederacy.  These  statutes  and  proceedings 
were  denounced  as  unconstitutional  in  the  Conjjress,  the  Stale 
lej^islatiires,  and  the  courts,  and  created  niueh  opjiosition  to  the 
('(iiilederacy,  although  the  courts  upheld  them.'-''  The  Vice- 
l'ie>ident,  Alexander  II.  Stephens,  was  their  vigorous  opponent.^ 
When  a  Confederate  general  had  appointed  a  civil  governor  of 
die  city  of  Atlanta,  he  wiote  to  tlu^  latter:  '•'^'oiir  oDice  is  un- 
kiiiiwii  to  the  law.  (Jeneral  liragg  had  no  more  autluu'ity  for 
aiipdiiiting  you  civil  governor  of  Atlanta  than  I  had;  and  I 
iunl.  or  liiive,  no  more  authorit}'  than  any  street-walker  in  your 
State.  I'n.ler  his  appointment,  therefore,  you  ciiii  rightfully  ex- 
ercise no  more  jiower  than  if  tlie  a[)poi!itment   liad    been  made 


"  llluxles,  History  of  llio  Unltod 
Sta'.cs  vol.  ill,  11.  noi. 

".\cls  of  Fii-sl  ('oiif(>(lcrnlo  Con- 
gress, |i.  ]  ;  R!,0(lcs,  iliid.,  \>.  001. 

»>Ilii(l.,  i>i..  COl  r,03. 

'■"  Si'O  Mc-i'liiT-iin,  History  of  tho 
RplirllioM,  pp.  1'21,  1S7,  188,  01«,  (119. 
Tho  Siipronu!  Court  of  North  GiroUua 
wi'i'.'  (lividcil  upon  tho  sulijoet,  with 
ii  iniijorily  in  f^ivor  of  tlio  constitu- 
tidn.ility  of  tho  Ku.spenslon  (Mirhcr- 
f"n,  Illsloiy  of  thi>  Ui'licllion,  i>.  120). 
I'r.ulii  1(1  salil,  in  his  nrt;iinionl  in  Mil- 
li^•.■u^s  Ciiso  (4  Wall.  2,  .I?;:  "When 
civilians  arrosted  by  military  iinthor- 


Ity  petitioned  for  rclcuso  by  the  writ 
of  habean  roi-jtiut,  in  o\-ery  cnHO,  suvo 
cue,  tho  writ  was  c;raiited,  and  it 
was  decided  Ihit  there  conld  bo  no 
Biitpensiou  of  the  writ  or  d<"i  laraflon 
of  martial  law  by  the  ixeeutive  or  by 
any  other  thau  tlie  supreme  iegislativo 
authority." 

"-Stephens,  Constitutioiwil  View  of 
tho  War  between  the  St.ateM,  vol.  ii, 
p.  570.  Tho  State  le|,'islaturo  of 
G(>ornia,  in  JIaich,  ISlll,  when  tho 
ConffMleniey  was  in  desperate  straits, 
passed  resolutions  protesting;  nfj.iiast 
the  Buspunsion  of  tho  writ  of  liabeaa 


1204         CONSTITUTIONAL    IllSTOIiV    OF   OONFEDKli.VCY.       [CIIAP.  11. 

l)y  ii  slruut^w  iilkt'r."  ■'•'  Tlio  doctrine  of  State  rights  furtlier  iiijiireil 
the  Ci'iifederacy,  l)y  iittein])ts  iu  the  State  legislatures  to  insti- 
tute separate  negotiations  for  peace  ^  and  secessions  from  tiie 
Ciinfederacy .'■'•''  In  but  one  ease  did  it  i)rove  beneficial.  Davis 
and  Lee,  than  whom  no  one  was  more  conipetent  to  pass  judg- 
ment upon  such  a  subject,  were  strongly  of  the  opinion  that 
negroes  should  be  euii)loyed  in  the  Southern  army.  The  o[\\»h 
sition  in  the  Confederate  senate  was  so  strong  that  Davis  filially 
said,  in  his  exasperation,  "  If  the  Confederacy  dies,  there  should 
be  written  on  its  tombstone,  'Died  of  a  theory.'"  At  the  close 
of  the  war,  when  it  was  too  late  to  jirove  of  nuich  value  or 
mischief,  the  measure  was  finally  carried  through  their  Congress 
by  the  votes  of  the  senators  of  Virginica,  who  believed  the  measure 
dangerous  as  well  as  inexiiedient,  but  yielded  to  the  instructions 
of  their  State  l^egislaturc."*' 

The  last  act  under  the  Confederate  Constitution  was  at  Charlotte. 
North  Carolina, on  April  24th,  18G"),  —  the  api)roval  by  President 
Davis  of  the  terms  of  the  agreement  between  (Jeiierals  .loliiistou 
and  Sherman  that  the  Confederate  army  should  disband,  peace  h 
restored,  amnest}'  granted,  and  the  Confederate  States  return  to 
tlie  United  States  with  their  former  jjolitical  rights  an<l  the  rights 
of  person  and  pioperty  of  their  inhabitants  unimpaired.  lie 
obtained    a    wiitteu  oj)inioii  from  each    member    of    his    cabinet 


corjnis  1111(1  llio  ]iroiM'C(lin(;w  uiulor  (lio 
81UI1I',  (li'cl.iriMi;,  "'I'htit  in  tli"  juili!- 
niriit  of  tills  ni'iicral  assciiilily,  tlio 
miiil  iK.'t  is  a  clanm-rous  ansault  uiioii 
thocoiistilulioiiiil  ]i(i\vrrof  llioconrtrt, 
and  ii|ion  tlio  liln-rtj-  of  tlu)  {h'di.Ii', 
and  lii'jonil  tlii'  iiowcr  of  any  ikishIIjIo 
nofcssity  to  justify  U"  (ilii<l.,  \ol. 
ii,  pp.  7SS,  TS'.i).  Siniiliii'  rcscilutions 
wiM'd  passeii  by  tlio  li';;isl:itiiro  of 
JIi;i>isKi|'i.i  (Mcrii.'rsoii,  History  of 
11,1'  Ki'Ik  Uion,  p. :!'.)'.).  Jlorc  tliau  (iiic- 
tliini  (it  llio  lo,V('i- hoiif-o  of  tlio  Con- 
foilcniln  CoMf^ross  «ii])p(5it(  d  a  nwolu- 
tidii  pi'otohtiii^;  against  tlie  siisponbion 
of  ilio  writ  of  halicas  cdrpiis;  and  a 
now  lilli  extendiiiK  its  power  of  sus- 
pen>ion  was  at  first  defeated  iu  tlie 


BOIiato  (ibid.,  pp.  618,  {'.I'.li.  Sec  also 
HtcpluMi.s'  tostinioiiy  bot'orn  tlie  .loiiit 
Coniiiiitten  on  ll(M'OiiHtni(liou  ilii'pnrt 
of  tliat  Coiiiniltlco,  Part  III.,  p.  V'l). 

"'■  Steiiliens,  Constitutional  View  of 
the  War  between  tiio  States,  vdl.  ii, 
p.  7Sfi. 

'■"  Ke(>  tli(>  IcMcr  of  .[cITcrson  D.ivi.-i 
to  the  State  soiialois  of  (teor.t,'!.'.,  mi 
Slati>  ncf^oliations  for  jicaco  ('MiPlii'r- 
Koii,  Hi.slory  of  tln^  llebellioii,  pP- 
Glfi,  G17>  ;■  also  ibid.,  p.  -l.ji;,  r,ll- 
r,2'2. 

'■'■■' Co.\.  Tlir('(  Decades  of  ]■".■  I>'ral 
Lepsiadon,  |i.  itll). 

"'1  Divis,  Kiso  and  Fall  of  tli.'  ("n- 
fedoratu  Oovernmout,  vol.  i,  pp.  TdJ 
510. 


§i58.] 


rROni.KMS    OF    UKCdNSTIUTTIOX. 


205 


icininiiu'iKliiig  liis  action  before  lie  yigueil  the  j'^'I"-'''-  'l'I>ey 
i';i:lli'.'r  locomincnded  that  he  should  afterwards  request  the  States 
to  ratify  his  aetion,  whieh  was  considered  to  ho  l)eyon(l  his  con- 
stitutional powers,  and  only  jiistilicd  hy  the  enicrgeney."^  The 
i,'ov>  rinnent  of  the  United  States  relieved  them  from  further  em- 
lianassnient  hy  a  refusal  to  approve  tlie  agreement,  a  destruction 
of  tlio  Confederate  government  and  the  ciipture  of  its  President.''* 


g  38.  Reconstruction. 

Tlio  restoration  of  peace  and  order  after  the  close  of  the  Civil 
War,  and  tiie  readmission  of  the  conquered  iieople  to  tlu^ir  former 
ri'liitions  with  tlie  Federal  government,  presented  the  most  dilficult 
[loliticiil  and  constitutional  problem  wiiieli  the  United  States  has 
liad  to  solve.  It  was  accomplished  only  by  wiiat  was,  in  fact  as 
wcl!  as  name,  a  complete  reconstruction  of  the  Union,  '''lie  re- 
sult had  established  the  illegality  of  secession,  and  the  i)roceed- 
iiigs  liy  the  successful  army  had  been  justified  upon  the  position 
that  tiio  war  was  made,  not  upon  the  seceding  States,  whicli  could 
not  he.  and  had  not  been,  in  law  or  fact  separated  from  the 
I'liioii,  but  upon  such  of  the  peoj)le  in  them  as  had  com- 
hined   to    oppose    the    laws  of    the    United    States.'     When   the 


»' Tlio  opinions  of  the  Confoilornle 
calilni'l  wcro  i-pprinlcd  in  tlu'  New 
V(irk  Sim,  Fcli.  It,  ISHO.  Xo  Btudoiil, 
j^iioiilcl  f;iil  lo  rxiiiiiliiP  tho  lili's  of  tliiit 
l«'ri(Mlii',i|,  uhiili  coiilain  morn  valua- 
Uji' liis!oi'ii'(il  niatf'rial  ami  nioroiiccu- 
Ml(Miifniiiiiiiioii  conccrninf^  cotistitu- 
ti  iiinl  i|iii'slion.s  tliaii  any  oUier  nows- 
\Ki\ii'r  ill  tlio  world. 

■•«  him.  §  38.  Tho  dociFionsof  tho 
marts  upon  tho  validity  of  tho  nrti  of 
tliii  ConfiMlcralo  Government  arc  din- 
c'lssi'il  snbHi>(|upntly  under  tlie  War 
I'owpr. 

For  an  interestinR  iiei-oiint  of  tlm 
si'cossioii  of  Spiii-la  from  tin?  Achaian 
IjpiiKii;'  hoiv'Mse  of  the  di'iuand  for 
wiiTie  LiicedomiiiiiMii  (llilniH'ers  vho 
liad  altiiikc'd  nnollier  Federal  eity; 
—  "  dfrrrvenmt  nnuuciiimliiin  Hiirirla- 
tern  Achaeis  "  —  ;  nnd  tho  conseiiueut 


waraftainatlttiy  thoLenfjuo,  B.  C.  189- 
18H,  which  resulted  in  the  Burrender 
of  thi-  nialefnelors,  of  whom  seventoon 
were  itiuiiediati'ly  massacred,  and  tho 
rest,  sixty  tlireo  in  numlier,  executed 
th<!  followliii,'  day,  af!er  a  trial  liefore 
the  military  assombly  of  tlie  Leamio: 
seoLivy,  xxxvili,  pp.  31-3H  :  Freeman, 
History  of  Federal  Government,  pp. 
fi41-(il3.  Sparta  later  resumed  her 
former  relalionw  with  th(>  confederacy 
witlioiit  any  ro  ■m-t ruction  (llild). 

§  ;18.  1  III  Lincoln's  I'roclainallon 
of  April  1"),  181.1,  callins  for  troops 
{miprn,  §  ;;'!,  ovi'r  note  .l.'i,  and  vfra): 
"Whereas  tho  laws  of  tlie  TTnited 
States  have  liec-n  for  some  timo  pni-t, 
nnd  now  am  opposed,  and  tlm  e.^ecu- 
llon  tliereof  olisl meted,  In  the  States 
of  South  Carolina,  OoorKla,  Alabama, 
Florida,   Mississippi,    Louisiana    and 


206 


UKUO.NSTIUCTION. 


[cum:  II. 


luttles  were  over,  the  South  and  their  friends  in  tlie  North  w- 
joined  tii;it,  now  it  liad  been  established  tliat  tliey  luid  not  gone 
out,  these  States  must  be  still  witliin  the  I'nion,  and  as  sueli 
tliey  were  entitled  to  ininiediate  rej)resentation  in  both  iiouses 
of  Congress,  and  complete  local  self-government,  including  full 
authority  to  regulate  the  right  of  suffrage,  to  deternune  the  status 
and  civil  rights  of  the  blacks  within  their  boundaries,  and  oven 
lo  pay  tiie  debts  incurred  for  the  j)roseeution  of  war  agiiinst 
tlie  national  government.^  The  victors  felt  their  moi-.il  obligatidu 
not  only  to  protect  from  the  vengeance  of  a  majorit}-,  embittered 
by  defeat,  their  wliito  allies  in  the  South,  who  had  risked  their 
property  and  lives  in  supi)ort  of  the  Union  through  the  war,  hut 


Texiis  liy  combinations  too  i)0WPifiil 
to  Ipo  Hii|i|irossocl  l)y  tlie  ordinary 
courso  of  judii'ial  profOt^dings,  oi'  by 
llie  powors  vested  in  the  ni'irelials  ))y 
law;  now,  therefore,  I,  Aliraliam  Lin- 
coln, I'resident  of  the  United  States, 
in  virtue  of  the  power  in  nie  vested 
liv  liieConstitiition  and  the  laws,  have 
thought  lit  to  call  forth,  and  do  call 
forth,  the  militia  of  the  several  Stales 
of  the  Uiiion  to  the  aggregate  mimber 
of  7r),O0(),  in  order  to  suppress  said 
comhinatiotis  and  to  cause  the  laws 
to  be  duly  executecl." 

^  The  best  statement  of  this  |)osl- 
tion  is  in  the  minority  report  of  the 
Joint  Committee  ou  Reconstruclion 
(Mcl'herson,  History  of  Ri'cMuislrnc- 
tion,  pp.  !);i-]01.  Sei  also  rollard, 
The  Lost  Cause  Regained,  p.  51).  Ex- 
S(!nator  Henry  L.  Dawes,  of  Mas- 
sachusetts, tlius  describes  a  scene  in 
the  Senate  during  October,  IHdl, 
speaking  of  BreiUinridge  of  Ken- 
t  ucky :  — 

"One  of  the  deliales  in  which  ho 
look  iiart  In  that  session  wassodiii- 
matlc  in  some  of  its  features  tliat  the 
lni|iression  it  made  upon  mo  is  still 
vi\id.  It  occurred  a  few  days  before 
the  disaster  at  IJall's  Hlul'f,  in  which 
the  laiuent(Kl  Baker,  on<!  of  the  most 
elVcctive  orators  who  ever  sat  iu  the 


Senate,  was  killed.  Breckinridge  had 
taken  the  position  in  deliate  that  liie 
Cousiiluliou  had  made  no  provision 
for  tiie  exigency  which  confronted  us, 
and  was  pressing  for  an  answer  to  his 
question,  '  What  will  you  do  with  us 
if  you  <lo  conquer  usV  We  can  still 
voti'.  What  hinders  the  vanqujslii'd 
from  marching  from  the  baltle-licki  In 
solid  column  to  the  ballot-box,  anil 
beating  you  there,  if  we  shall  auinbiT 
there  mori>  than  you  do?  You  may 
def<'at  us  in  tlie  Held,  but  you  cannot 
disfranchise  us  till  after  conviction 
and  judgment  of  court;  and  you  can- 
not do  that  till  you  have  tried  us  liy 
twelve  of  our  own  peers  in  the  very 
State  whoso  people  have  themselves 
revoltc<l.  So  while  you  may  comiiuT 
us  In  arms,  we  will  afterward  conquer 
you  at  the  tialloi-liox.'  At  that  luo- 
menl,  Baker  entered  the  Senate-cham- 
ber ill  full  null'orm,  fresh  from  his 
coniiuanil  at  Bail's  Bluff,  anil,  |ilaciiJK 
his  sword  across  his  dey.k,  pluiigeil  at 
once  into  lleMlebate.  The  garlmf  the 
warrior  in  which  he  stood,  strangely 
emphasij.ed  the  words  of  the  leuisln- 
tor  when  he  llerccly  liu;  til  bac  U  tlio 
answer,  'W(>  will  govern  ,voii  as  loii- 
quered  provinces.'"  (The  Century, 
.July,  1895,  vol.  I,  p.  464.) 


§38.] 


i'RonLE>rs  OK  i;k('()N\stkc:ction. 


20T 


;il.so  to  cure  for  tlie  blaiks  to  wlioni  tliey  had  given  freedom,  and 
who,  untrained  to  self-supi)ort,  and  without  civil  rights  recognized 
liv  liiw,  nuist,  if  abandoned,  sink,  if  not  into  aetnal  shivery,  into 
iiraitical  serf(h)in  to  tlieir  former  masters.  The  situation  was 
further  eoniplicated  by  tlie  ehause  in  the  Constitution  whicdi 
wmilii,  if  unamended,  give  to  tlie  Southei'n  whites  representa- 
tion in  tlie  House  of  l{epresentatives  based  U])on  the  whole 
nunilier  of  free  inhabitants,  although  by  the  State  laws  then  upon 
their  statute-books,  the  blaeks,  who  were,  in  ]\Iississip[)i,  Louisiana 
;uul  Soutii  Carolina,  more  than  half  the  population,  could  not 
vote,  so  that,  if  the  result  of  the  war  left  that  unchanged,  the 
uoiKpiered  section  would  have  gained  a  stronger  voice  in  the 
national  councils  than  before.^  'i'he  disorder  inevitable  from  the 
passions  and  habits  engendered  during  live  years  of  internecine 
strife,  during  which  the  courts  had  been  so  often  closed,  and  the 
frruater  portion  of  the  property  of  the  whites  had  been  destroyed, 
was  moreover  heightened  by  the  presence  of  the  mass  of  freed- 
incii,  untrained  in  that  self-restraint  without  which  libertj-  is 
iiitdlerable,  not  accustomed  to  voluntary  hilior  or  respect  for 
contracts  and  the  rights  of  [iroperty  ;  and  to  preserve  order  ap[)eals 
were  continually  made  for  interference  by  the   Inion  army.^     In 


•'  "  A  lar;;!'  proportion  of  the  popii- 
laliciii  liail  liiMOiiic,  iuKtoail  of  nn'n- 
chaltils,  fri'i>  men  mid  cltlzciiH. 
ThniiiKli  all  tlio  past  strunRlc?  these 
hiul  rrmaini'd  true  and  loyul,  mid  had, 
in  laiKi'  niindiorB,  fought  on  tho  sido 
of  till!  I'liion.  It  was  inipossil)Io  to 
abimdoii  tliciii  without  socuring  thoiii 
their  rights  as  free  iiii'n  and  citiznns. 
The  wlloh^  civili/.eil  world  would  have 
cried  out  against  micli  base  iiigrati- 
tuile,  mid  the  hare  lilea  is  olTeusix c  to 
all  right-lliiukiiig  men.  Hence  it  be- 
«ime  iniiiortaiit  to  imiuiro  what  could 
he  (loiio  to  seeuro  llieir  rights,  civil 
and  piilitieul.  It  was  ovideiit  to  your 
OininilLleo  that  iidequati)  security 
could  only  bo  found  In  appropriate 
eonstilutionnl  provisions.  Hy  an  ori- 
ginal provision  of  the  Constitution, 
reprosontutlou  Is  buBod  ou  the  wholo 


number  of  froo  persons  In  eaoli  State, 
and  Ihreeflfths  of  all  other  persons. 
When  all  become  free,  rejiresentation 
for  all  necessarily  follows.  As  a  eoii- 
sequeneo,  Iho  iuevitaJile  etTec't  of  Ihn 
Rebellion  would  bo  to  increase  tlio 
political  po\v<'r  of  tlu?  iimurreetionury 
States  \vhen<iver  they  siiould  be  al- 
lowi'd  to  resume  thiur  position  as 
States  in  the  Union."     Heport  of  tlio 

■Toint  ('onimlttce  on   E iistruetion. 

(lleriierson,  Histoiy  of  l!(>(Oiistrue- 
tloii,  p.  HH.  See  also  the  spei'ch  of 
Thaddeus  Stevens,  in  i!h!  House, 
Dee.  IK,  IHfio,  cpiotc-d  by  1)1  due. 
Twenty  Years  in  Congress,  vol.  ii,  pp. 
128  i;t(l.) 

*  Tlie  eondition  of  affaiis  is  de. 
scribed  in  the  testimony  before  tho 
.Joint  Commitlee  on  Uoeonstruetion. 


208 


KECONSTUUCTION. 


[CIIAI-,  II. 


such  a  state  of  affairs,  it  was  the  helief  of  many  that  h)cal  sclf- 
goveniineiil  wi)s  inipossihle.  Tlie  theories  jjiopounded  to  iiui't 
the  situation  may  he  redui^ed  to  iive :  The  Southern  theory;  the 
tlieory  of  eonijuered  provinces ;  the  theory  of  State  suicide;  tlie 
presidential  theory;  and  the  theory  of  forfeited  riglits/' 

Tlie  Southern  theory  has  just  l)een  exi)lained. 

The  tlieory  tliat  the  seceded  States  wei'e  conquered  provinces, 
v/ith  no  constitutionaf  rights,  whose  lioundaries,  if  need  were, 
miglit  lie  ohliterated,  whicii  was  tliat  of  Thaddeus  Stevens,''  was 
only  logical  if  the  legality  of  secession  was  concede<l,  and  the 
North  admitted  the  original  contention  of  the  South,  that  the 
war  WHS  waged  hy  them  for  eonqiie.st,  and  not  to  uphold  the 
(constitution. 

The  theory  of  State  suicide  was  ingenious  as  a  legal  fiction  in- 
vented to  meet  the  purposes  of  the  situation,  hut  without  support 
in  legal  precedent,  history,  or  the  language  of  tlie  Constitution. 
It  was  formulated  hy  Ciiarles  Sumner,  in  a  series  of  resolutions 
tahled  in  the  Senate  in  1802.     These  declared :  — 

"  Tliat  any  vote  of  secession  or  other  net  by  which  any  State  may 
undertake  to  put  an  end  to  the  supremacy  of  the  Constitution  within 
its  territory  ia  inoiicnitive  and  void  a;j;ainst  the  Constitution,  and  when 
sustained  by  force  it  becomes  a  practical  abdication  by  the  State  of  all 
rights  under  the  Coiistiliilion,  while  the  treason  it  involves  still  further 
works  an  instant  forfeiture  of  all  those  functions  and  powers  essential 
to  the  continued  existence  of  the  State  as  a  body  politic,  so  that  from 
that  time  forward  the  territory  falls  under  the  exclusive  jurisdiction  of 
Congress  as  other  territory,  and  tlie  State  being,  according  to  the 
language  of  the  law, /cto-t/c-.s'P,  ceases  to  exist." 

"  That  the  termination  of  a  State  under  the  Constitution  necessarily 
causes  the  termination  of  those  peculiar  local  institutions  which,  havinii 
no  origin  in  the  Constitution  or  in  those  natural  rights  which  exist 
independent  of  tlie  Constitution,  are  upheld  liy  the  sole  and  exclusive 
authority  of  the  State." 

"That  slavery,  being  a  peculiar  local  institution,  derived  from  local 
laws,  without  any  origin  in  tlie  Constitution  or  in  natural  rights,  ia 
upheld  by  the  solo  and  exclusive   authority  of   the    State,  and  must 


8  Dunning,  The  Constitution  In  Be- 
construetlon,  PoUllcul  Scleuvo  Quar- 
terly, vol.  i,  pp.  558,  580. 


«  See  Ills  speocli  In  tho  House,  Dec. 
18,  18C5. 


sr 


38.] 


THEOlt    ,S   OF    RECONSTIIUCTION. 


2ni> 


tluToforo  cease  to  exist  legally  or  constitutionally  when  the  State  on 
wliirh  it  depends  no  longer  exists ;  for  the  incident  cannot  survive  the 

|)iiiici|)al."' 

'I'iic  })r('si(l(Mitial  theory  was.  that  the  President  as  commander- 
iii-iliii'l'  had  the  eoiistitiitioiial  right  to  organize  temporary 
;,'o\(  riinients  in  tiie  States  which  liad  been  the  seat  of  the  in- 
surrection, until  in  his  opinion  they  were  capable  of  selt'-govern- 
mciit;  tliat  by  his  j^ower  to  pardon  he  had  the  discretion  to 
ilcttrniine  the  time  when  the  insurgent  people  should  receive 
iiiiiiHiiiity  for  their  treason  and  restoration  to  any  riglits  which 
ili(  y  liail  forfeited  by  rebellion ;  and  that  by  the  imposition  of 
ciiuilitions  upon  the  grant  of  these  privileges  he  could  compel 
sill  li  cliauges  in  the  State  constitutions  as  were  demanded  by  the 
iiL'w  situation. 

The  theory  of  forfeited  rights  was  that  ujjon  which  Congress 
finally  acted.  It  was  a  compromise  between  the  other  views,  and 
!i;iil  little  support  in  the  logical  interpretation  of  the  Constitution, 
ultliiiiiLjIi  great  practical  advantages.  According  to  this,  the 
iiisui!,'i'iit  States  had  never  left,  could  not  go  out  of  the  Union. 
anil  liad  always  retained  their  i)olitical  existence,  but  by  their 
rt'hillion  they  had  forfeited  their  j)olitical  right  to  share  in  the 
councils  of  tlie  nation  and  even  to  complete  local  self-government. 
In  ihc  enforcement  of  his  plan  the  President  had  the  absolute 
powor  ti)  grant  pardons"  and  the  power  to  control  tlie  army  as 
coiir.nander-in-chief,  ^  although  Congiess  claimed  the  riglit  to 
rcjiulate  by  law  ^^  the  exercise  of  the  latter  executive  function. 
On  the  other  hand.  Congress  was  vested  witli  the  powers  to 
cxcicise  exclusive  jurisdiction  over  the  admission  and  exclusion 
of  iiicnibers,"  to  suppress  insurrei'tions,'^  and  to  guarantee  to  each 
StiU(!  a  republican  form  of  government.'^  The  clause  containing 
this  last  grant  was  called  by  Sumner  "  the  sleeping  giant  of  the 
Constitution." 


■  Jlcl'horson,  History  of  the  R(>- 
bellidii,  pp.  322,  323.  This  theory  is 
ndvdcutcd  l.y  Jolin  C.  Hind  ill  Ills 
Tlicdi-y  of  (iiir  Niitm-.il  Existciico,  and 
Hiciwii'  nil  iii  The  Aiiicrioiiii  Republic. 
Tlii>  iilcii  w.is  of  coiirso  RURK''>^t('d  by 
tlio  Ii'm^'IIhIi  pro(M<i>dings  in  1688;  and 
was  iMimilly  revolutionary. 


»  Constitution,  Art.  II,  Sec.  2. 

»  Ibid. 

'"  Constitution,  Art,  I,  Sec.  8,  con- 
cluding clauso. 

II  Conslitution,  Art  I,  See.  .'>. 

'■^  Constitution,  Art.  I,  See.  H. 

"Constitution,  Art.  IV,  Sec.  4, 
Luther  v.  Borden,  7  How.,  1,  12. 


910 


KECON8TRITCTION. 


[chap.  ir. 


During  tlie  early  sUipes  of  the  Civil  War,  C-ongress  proclaimcil 
the  theory  upon  which  the  South  suhstupiently  relied.  In  July. 
1861,  the  following  resolution,  introduced  by  Crittenden  in  the 
Mouse  and  Andrew  John.sou  in  the  Senate,  was  passed  with  but 
two  dissentients  in  the  former  and  live  in  the  latter  body:  — 

"  Hi-noh't'il,  That  the  present  deplorable  Civil  AVar  has  been  forced 
upon  tlie  country  by  the  clisuniouists  of  the  Southern  States,  now  in 
revolt  against  the  Constitutional  government,  and  in  anna  around  the. 
capital.  That  in  this  national  emergency  Congress,  Ijanishing  all 
feelings  of  mere  passion  or  resentment,  will  recollect  only  its  duly  to 
the  whole  <'ouutry ;  that  this  war  is  not  waged  upon  our  part  in  any 
spirit  of  oppression,  or  for  any  purpose  of  conquest  or  subjugatiou,  or 
purpose  of  overthrowing  or  interfering  with  the  rights  or  established 
institutions  of  those  States,  but  to  defend  and  maintain  the  supri'iiiaoy 
of  the  Constitution  and  preserve  the  Union,"  [in  the  Senate  the  it- 
solutions  here  said,  "  and  all  laws  made  in  pursuance  thereof  "] ,  •'  witli 
all  the  dignity,  ecjuality,  and  rights  of  the  several  States  unimpaired; 
and  that  as  soon  as  these  objects  are  accomplished  the  war  ouirht  to 
cease."  '* 

'I'he  existence  in  tiie  ('nifjii  of  the  seceded  States  was  re- 
cognized in  the  imposition  of  the  direct  tax  of  18B1,  when  their 
])roporth)n  was  assigned  to  them  and  the  amount  of  the  deficiency 
of  each  was  made  a  charge  upon  the  lan<l  witliin  its  jurisdicticiu.''^ 

At  first,  no  attempt  was  made  by  the  United  States  to  or- 
ganize a  civil  government  in  any  except  Virginia,  as  described 
in  a  preceding  section."'  liefore  the  organization  of  the  Sliti' 
of  West  N'ii'ginia,  senators  and  one  representative  elected  uihIpi' 
the  auspii;es  of  the  Pierpoint  government  were  admitted  to 
seats  in  Congress,  from  ^'irginia,'"  but  no  other  representatives 
from  that  State  received  seats  until  its  reconstructu)n.  Andrew 
Johnson  was  admitted  as  a  senator  and  Maynard  and  Clemciils 
as  representatives  from  Tennessee  while  it  was  still  tlie  seat  of 
war."*     On  February  0th.  18(!3,  at  the  close  of  the  thirty-sevenlli 


'»  McPheisoii,  Histoiy  of  tlio  Uebnl- 
llon,  ji.  '2K0.  Si'p.  however,  note  2, 
Kupra. 

"i  12  St.  at  L..  295,  422. 

I"  Supra,  §  3(1,  over  nolo  59.  Hoi' 
«lso  infra,  over  notes  3H,  54,  and  58. 


"  Segur's  Case,  Bartlntt,  Conti*i"''l 
Eloetlon  Cases,  414-418;  Nieolay  iind 
Hay,  Life  of  Lineoln,  vol.  1.x,  p.  437. 

"Ibid.,  vol.  U,  p.  438;  vol.  vl,  p. 
348. 


§  :!«•] 


WAU   (JOVEHNMKNTS. 


211 


Coiif^ivss,  two  rcpresentiitives,  chosun  in  tlie  previous  December 
at  iiu  ('li;i:tiou  held  under  tlie  direction  of  a  military  governor  of 
Liiiiisiiiin,  were  admitted  to  seats  in  the  House;  but  there  was 
(!onsi(lcnible  opposition  to  this  proceeding,  .ind  it  was  not  intended 
to  establish  a  binding  precedent.'" 

Tiic  insurgent  territory,  when  sul)jected,  was  governed  under 
uiiirtial  liiw  by  the  otlicers  of  the  army  of  the  United  States  or 
iiiilitirv  g()V(M'nt>rs  appointed  by  the  President,  and  justice  Wiia 
a(biiiiiistcrcd  by  judges  detailed  either  from  the  military  service 
or  civil  life,  whose  decrees  were  subject  to  revision  by  the  ollicer 
in  coiiinuind  of  the  district.  In  some  cases,  taxes,  or  I'atlier 
rcqui.sitions,  were  levied  upon  the  inhabitants  by  the  olliicrs  in 
cliiirge.  Of  the  constitutionality  of  these  acts  under  the  war- 
power  and  the  power  to  suppress  insurrections,  during  the  pend- 
ency of  actual  war,  there  can  be  no  doubt;  and  the  proceedings 
were  sustaineil  by  the  SupreUiC  Court  of  the  United  States.^" 

The  standing  in  those  States  of  the  blacks  and  the  disloyal 
whites,  who  were  not  prisoners  of  war  or  actually  in  arms  against 
the  I'nion,  was,  however,  a  question  of  serious  dilHcult}-.  That 
of  the  whites  was  settled  by  acts  of  Congress  which  imposed  a 
test-oath,  called  the  iron-clad  oath,  upon  all  otlicei-s  of  the  United 
States  '■"  and  grand  and  petit  juroi's,''^  under  which  all  pei-sons 
were  disqualified  from  oflice  and  the  jury-box  who  were  unable 
to  swear  that  they  had  not  voluntarily  assisted  the  Confederate 
(iovcriiinent  or  the  insurrection.  Both  houses  of  Congress, 
thniugh  their  power  to  determine  the  qualifications  of  their 
menil)er8,  excluded  all  persons  who,  in  tlicir  opinion,  were  guilty 
of  ihsloyalty.'^     Several  senators  from   the    Confederate  States, 


'■•  Oiso  of  Fliiiulcrs  iinil  Hiilin. 
lilaiiic,  Twenty  Years  iu  Cougress,  vol. 
li,  p.  :!(!. 

->  Cross  r.  H.arripon,  Ki  How.,  ICA, 
I'M:  lluinilloii  r.  Dillon,  21  Wull.,  7:!; 
Lclti'Msdorfer  v.  AVclili,  20  How.,  17(!; 
The  (irapo.sliot,  9  Wall.,  129;  Moeluin- 
wa  anil  Trailers  1?"  k  v.  Union  13ank, 
•J'i  Wi.ll.,  270;  N.-w  Orleans  v.  N.  Y. 
Mail  MteaiMship  Co.,  29  Wall.,  3H7. 
This  subject  will  bo  iliscubsed  aubse- 


qiieutly  in   the  chapter  on  tho  War 
Power. 

21  Aet  of  Jnno  17,  18G2,  12  St.  at  L., 
p.  4,10. 

22  Act  of  July  2,  18(12,  12  St.  at  L., 
p.  502. 

2''  Cnso  of  Philip  F.  Thomas,  of 
Maryland,  Tatt's  Senate  Eli'c'lionCasoa, 
continued  by  Furber,  p.  21)7,  and  cases 
cited  infrd  in  the  section  on  the  suli- 
ject  of  (lualilluatioua  for  lucniben)  of 
Congress. 


212 


RECONSTllUCTION. 


[riiAr.  II. 


aiul  one  from  tho  Inyiil  St;ito  of  Kentucky,  wcro  oxiiclK'il  f(ir 
treason.-'  Tlio  viiliditv  of  IIiIh  iu;tioii  hy  tliP  House  and  SenUo 
is  beyond  dispute.  Tlic  Liw  preseribing  a  tcst-oatii  for  gr.uul 
jurors  remained  upon  tlie  statute-book  until  May  14tli,  181S4, 
wlien  it  was  repealed,'^  after  tbe  elear  intimation  l)y  tbo  Supreme 
Court  tiiat  altliougli  it  niigiit  l)e  a  eonstitutional  exereise  of  tiie 
war-power,  it  was  uneonstitutional  in  time  of  j)eaee.'-^'  Tlie  coii- 
stitutionality  of  tlie  act  imposing  such  a  (est-oaili  ujion  oflicii-s 
of  tlie  I'nited  States  lias  never  lieeii  brought  before  the  Sujiicini' 
(!ourt  for  review.  An  extension  of  the  act  so  as  to  ajiply  to 
attorneys  in  llie  Courts  of  the  I'nited  States  was  subsequently 
lield  uneonstitutional  as  an  ex  pout  fiicto  law.'-"^ 

The  statiis  of  tiio  blaeks  was  a  subjeet  of  greater  dillieulty. 
At  the  outbreak  of  hostilities,  neither  President  Lineoln  nor  a 
majority  of  tbe  Hepubliean  party  was  prepared  to  do  any  act  wliicli 
might  make  it  appear  as  if  the  objeet  of  the  war  were  to  aliolisli 
slavery.  The  negroes  left  behind  by  sueb  of  their  former  owners 
as  bad  fled  within  the  Confederate  lines,  and  those  who  had  es- 
caped thenee  to  tbe  Union  army,  and  sought  protection,  were, 
iiowever,  capable  of  affording  valuable  assistance ;  and,  moreover, 
the  consciences  of  the  Northern  civilians,  as  well  as  soldiers,  were 
offended  at  the  thought  of  returning  them  to  slavery.  Orders  iiy 
(ieneral  i'Vemont,  in  Missouri,  August  31st,  18(51,  and  General 
Hunter,  May  9th,  18G2,  of  which  the  former  emancipated  the 
slaves  of  all  persons  in  the  State  of  Missouri  who  bad  taken  up 
arms  against  the  Uniteil  States,  and  the  latter  all  slaves  in  tlie 
States  of  Georgia,  Florida,  and  South  Carolina,  were  rescinded  bv 
President  Lincoln,  who  said :  "  That  whether  it  be  competent  for 
me,  as  Commander-in-Chief  of  the  army  and  navy,  to  declare  the 
slaves  of  any  State  or  States  free,  and  whether,  at  any  time,  in 
any  ease,  it  shall  have  become  a  necessity  indisj)ensable  to  the 
maintenince  of  the  government,  to  exereise  such  supposed  power, 
are  questions  which,  under  my  responsibility,  1  reserve  to  myself. 


-*  Sop  tlin  Biilispcpiont  Boetlon  on 
eximlHion  from  C/onnress. 

•■!•"'  23  St.  lit  L.,  22. 

*'  U.  S.  r.  Gnle,  109  V.  S.  05,  T.l. 
See  also  Burt  v.  ranjaud,  09  U.  S., 


180,  IHH ;   Atwood  V.  Weems,  90  V.  S., 
is;i,  1S7,  1S8. 

■i-  Ex  part,'  Garland,  4  Wall.,  32:1. 
Tliia  subjoot  will  bo  discussed  sulise- 
queully. 


§38.]  CONTRABANDS.  :21;5 

iiiid  which  I  ciinnot  feel  justified  in  leaving  to  the  decisiini  nf 
(■(miniiiiulei-s  in  the  field. '"-^  A  temporary  solution  of  the  iirohleiii 
was  iitfiinU'd  1)}'  tii(!  ingenuity  of  (Jeneral  lU'iijaniin  V.  Ilutk'r.  niio 
ivfuscd  to  return  tilaves  tiiat  iiad  eseaped  to  tlie  I'nion  lines,  upon 
tliu  plea  that  they  were  eontraband  of  war.^  Finally,  September 
'2-'l,  l.S(')2,  Lincoln  issued  his  Enianeipation  I'roclamation.  which 
deihired  liiat,  on  the  first  day  of  January,  18(!;i,  "all  j)ersons  held 
as  slaves  within  any  State,  or  designated  i)art  of  a  State,  tlie  peo- 
])le  whereof  shall  then  be  in  rebellion  against  the  ITiiited  States, 
siiall  be  then,  thenceforwaril,  and  forever  free " ;  and,  at  tlie  ap- 
poinU'd  time,  a  second  proclamation,  declaring  the  freedom  of  all 
slaves  ill  tiie  insurgent  territory.*'  Destitute  freedmcn  were  sup- 
piirted  by  the  War  Department,  in  wliich  a  Freedmen's  Bureau 
was  establisbed."' 

'i'iie  I'resideiit  observed  the  same  care  in  preventing  the 
olliccrs  of  the  Union  army  from  committing  him  to  any  course  of 
action  towards  the  insurgent  States  after  the  restoration  of  peace. 
General  (irant  was  instructed  — 

'•  to  liiivc  no  conference  with  General  Lee,  unless  it  be  for  the  capitula- 
tion of  General  Lee's  nniiy,  or  on  Bonie  minor  and  purely  military 
iiiiittor";  and  "not  to  decide,  discuss,  or  confer  upon  any  political 
question.  Such  questions  tlie  President  iiolds  in  his  own  hands,  and 
will  suhniit  tliein  to  no  military  conferences  or  conventions."'''' 

lie  liad  previously  disajiprovcd  the  action  of  (Jeneral  IJutler  in 
iinleriiig  miinicipa'  elections  in  the  district  under  his  command, 
to  decide  whether  the  local  goveninients  organized  by  Pierpoint 
ill  V'irijinia  should  be  continued.      In  liis  letters  he  said:  — 


-■*  McVliorson,  History  of  the  Roljol- 
lioii,  pp.  21.')  I25t. 

'•"'  IJullor's  Book,  p.  2r)7.  His  aolion 
was  ajiprovcil  liy  tlio  Dopartmont  of 
Viir.  Ill)  wns  flir(!ctO(l  to  keep  a  list 
(if  I liofii^ilivos  employed  by  him,  with 
the  names  of  tlifMr  masters,  in  onler 
lliat  loyal  inasterH  mi}?lit  reefuve  com- 
piMisalioM  from  C-ongross  iiflor  tlio 
AVar  {MiTlierson,  History  of  tlio  llo- 
boUioii,  pp.  211,  245). 

''  JleVlu  I'Hon.  Ilistorj-  of  the  Eobel- 
liim,  pp.  227,  228.  The  legality  of 
tills  proelamutiou  will  bo  considered 


subsef|uently.  Later  statiito.s  emiin- 
eipateil  "alile-liodii'il  coIoivmI  ])(>i>ons" 
dratted  into  tlie  army,  iiinl  nlvo  tin^ir 
wivi's  and  eliildn>n,  with  provisions 
for  eompensation  to  loyal  owners  (13 
St.  lit  L.,  11,  2!»). 

^1  Tlio  abandoned  land  in  llic  South 
was  tomponii'ily  appropriiUed  lorllieir 
support  (JlePlii'ison,  History  of  tlio 
Uelpellion,  |ip.  .5'Jl,  .'i',).')). 

"-  Slanlon's  telegram  to  Grant,  Nov. 
3,  18(ir.  (MePlierson,  History  of  the 
Reeonstruetion,  p.  122). 


214 


RECONSTRUCTION. 


[CIIAI'.  11. 


"  Nothing  justifica  the  Biisponding  of  the  civil  by  tlic  military  au- 
thority but  niilitury  nccpssity,  auil  of  tlic  cxiBtenco  of  Hint  neceHsily  tlic 
iiiililiiry  coininiimU'r,  and  not  a  popiiltir  vote,  is  to  tlccidc.  Ami  wiiat- 
ever  is  uot  williiu  siicli  necessity  slioukl  bo  left  untliBturbed."  "'Jin^ 
course  here  indicnted  does  not  touch  the  cnso  when  the  military  com- 
iiiander,  finding  no  friendly  civil  government  existing,  may,  under  tbc 
sanction  or  direction  of  the  President,  give  assistance  to  the  people  to 
innugunito  one."  " 

Upon  the  collapse  of  tlie  Confederacy,  tlie  Soutliern  States  as- 
sumed that  their  former  position  in  the  Union  remained  iinim- 
jiairud  ;  iind  tiieir  governors  summoned  meetings  of  their  legisla- 
tures to  adopt  such  measures  as  seemed  appropriate  to  them. 
Thcsi;  proceedings  were,  however,  suppressed  by  the  Union  army.'* 
Ill  N'irginiu,  the  President  at  lirst  suggested  that  "the  gentlemen 
who  have  acted  as  the  Legislature  of  Virginia,  in  support  of  tlie 
rebellion,  should  meet,  under  the  proteetion  of  the  army,  with- 
draw the  Virginia  troops  and  otiier  support  from  resistance  to  the 
General  (Jovernment "  ;  but,  upon  finding  thatsuuh  permission  hy 
him  would  be  construed  as  a  recognition  of  the  legal  authority  of 
the  legislature,  he  promptly  recalled  his  proposition.'"' 

The  shot  which  killed  Lincoln  was  more  injurious  to  the  South 
than  any  other  fired  in  the  Civil  War.  It  was  his  earnest  desire 
to  restore  the  insurgent  States  to  their  normal  condition  as  soon 
as  possible,  without  any  more  change  than  was  absolutely  neces- 
sary in  the  fundamental  law.  That  the  validity  of  the  Proclama- 
tion of  Emancipation  should  be  recognized  he  was  determii'.ed; 
but,  beyond  that,  he  was  not  disposed  to  inijiose  further  material 
conditions  upon  their  return,  although  there  can  be  little  doulrt 
but  that  he  would  have  found  some  means  of  protecting  the 
freediiieii    from    opjiression.'*'      And    his    consummate    tact  iukI 


»3  Lincoln  to  Butler,  Auk.  t>.  1804; 
not  sent  tin  Dpo.  21,  IKIM ;  Nk'olny 
nnil  Hay,  Life  of  Lincoln,  vol.  Ix,  p. 
443. 

3*  Davis,  Rise  and  Fall  of  thn  Con- 
fcdorato  Oovomment,  vol.  ii,  pp.  740, 
7r>7;  Dimning,  Tlie  Constitutioa  in 
Reconstruction,  Pol.  So.  Q.,  vol.  ii., 
p.  558. 


"  McPlierson,  History  of  tlio  Ba- 
cons! ruction,  p.  2C. 

s"  In  a  sjxioch  by  President  Jcilin- 
son,  February  22,  ISOG,  ho  b:i1i1: 
"  Sliorlly  after  I  reached  Washiiiglon, 
for  the  purpo.so  of  bcluK  inauKuratcd 
Vice  President,  I  had  a  conver!=;ition 
witli  Mr.  Lincoln.  Wo  were  tulUiiii; 
about  the  condition  of  affairs,  a.-d  In 


§3S.] 


IilNCOLN'8   PLAN. 


21A 


til  Illness,  supported  by  the  confidenco  reposed  in  him  by  the  people, 
and  till'  use  of  the  executive  powera  and  patronage,  wouhl  have 
iiiiulc  liim  successful  in  any  conflict  in  which  the  opponents  of  liis 
jMilicy  in  Congress  or  the  Soutii  might  have  eiigagcd/''^  On 
Dcccnihcr  8th,  1803,  he  issued  a  proclamation  of  amnesty,  grant- 
iiiij;  pardon  to  all  persons  who  should  swear  that  they  would 
siipimrt,  protect  and  defend  the  Constitution  of  the  United  States 
iiiKJ  the  I'nion  of  the  States  thereunder,  and  ahiih;  by  and  faith- 
I'lilly  support  all  existing  acts  of  Congress  and  proclauiationH  of 
tiie  President  made  during  the  Rel)ellion,  with  reference  to  slaves, 
"SO  long  and  so  far  as  not  modified  or  declared  void  by  the 
decision  of  the  Supreme  ("ourt."  I'ersons  who  had  held  high 
(illicc,  civil  or  military,  under  the  Confederate  (iovernment,  or 
who  had  left  seats  on  the  bench  or  in  the  Congress,  or  resigned 
commissions  in  the  army  or  navy  of  the  United  States  in  order 
to  aid  the  Itebellion,  and  all  who  had  engaged  in  any  way  in 
treating  I'liion  colored  soldiere  or  sailors,  or  their  officers,  otherwise 
tlian  lawfully  as  prisoners  of  war,  were  excepted  from  the  proc- 
lamation.    He  then  continued:  — 

"And  I  do  further  proclaim,  declare,  and  make  known  that  when- 
ever in  any  of  the  States  of  Arkansas,  Texas,  Louisiana,  Mississippi, 
Teiiiipssee,  Alabama,  Georgia,  Virp;inia,  Florida,  South  Carolina,  and 
Xni'tli  Carolina,  a  number  of  persons,  not  less  than  one-tenth  in  num- 
ber of  the  votes  cast  in  such  State  at  the  presidential  election  of  the 


rofonnin  to  mjittors  iu  my  own  State. 
I  siiiil  we  hail  e.-illed  a  convention  and 
(IciiiiukUhI  a  constitution,  abolishing 
sliiveiy  in  tlin  State,  wliieli  provision 
nils  not  eontiiine<l  in  the  rresidcnt's 
liniclaTiiHtion.  This  mot  with  his  ap- 
pioliiition,  and  ho  }?avo  nio  eneoiir- 
aKonicnt.  In  thinklnLt  upon  tlio  sub- 
jott  of  nnienilinoiils  to  the  Coiistitu- 
lioii,  lin  saiil,  'when  tho  unioiulmenl 
to  the  Constitution  now  proposed  Is 
adopted  by  three-fourths  of  tho 
Slates,  I  shall  bo  pretty  nearly  or 
i|uite  done  aw  regards  forming  nmend- 
nients  to  tho  Constitution,  It  there 
slioiilil  1)0  ono  other  adopted."  I 
aekuil  what   that  other  amendment 


suggested  was,  and  ho  replied,  'I 
have  biliored  to  preserve  this  Union. 
I  have  toiled  four  years.  I  liave  been 
sul)jected  to  calunniy  and  niisrepro- 
sontalion,  and  my  gn-at  and  solo  de- 
sire has  lieen  to  preserve  tlieso  States 
Intact  under  tho  Constitution,  as  they 
were  before ;  and  there  should  bo  an 
ainondnient  to  the  Constitution  which 
would  romjicl  the  Slates  to  .send  their 
.Senators  and  IJeiircsentatives  to  the 
Congiess  of  the  United  States'" 
(MePlierson,  History  of  the  Bocon- 
struetion,  p.  61). 

^^  See  Ulaino,  Twenty  Years  in  Con- 
gress, vol.  11,  pp.  43,  44;  Rid<llo,  Rocol- 
lections  of  War  Times. 


216 


RECONSTllLCTION. 


[<'ll.\l'.  II. 


yeai'  of  our  Lnnl  oiu;  llioiis:iiul  I'i^lit  liiiiidrt'd  uml  HJxty,  uucli  liiivln;; 
taken  till'  outh  arurcsuul  iiiid  iiol  havin;;  Hiiict!  viulutcd  it,  niul  Uvaw^i  :i 
Himliliod  voter  l)y  tliu  eli-otioii  law  of  tlio  State  existing  iinniodiiiti'ly 
bcfoit!  the  Ho-calK'd  act  of  heccssion,  and  exrliidinji  all  otlnTS,  h1i;i11  ic- 
estalilisli  a  .State  fjovc^rnnient  whieli  bliall  be  I'cpnblican,  ami  in  no  wise 
rontruveninj.;  said  oatli,  sncli  nhall  be  refo);ni/,ed  us  tlie  trno  govern- 
ineiit  of  tlie  State,  and  the  State  shall  i'ecei\^  ''  jrc;iU(ier  the  lienclits 
of  the  conslitntional  provi.sion  which  decbircs  that  '  the  I'nited  Stiiles 
shall  jj;narantee  to  every  State  in  this  I'nioii  a  repnbliean  form  of  i,'iiv- 
crnineut,  and  Khali  protect  each  of  them  ngainst  invasion;  ami,  on 
aijplication  of  the  legislatnre,  or  the  executive  (when  the  legislaluif 
cannot  be  convened),  against  domestic  violence.' 

"And  I  do  fnrther  ])roeluini,  declare,  and  make  known  that  any  pro- 
vision which  may  be  adopted  by  hucIi  State  government  in  relation  to 
the  free<l  people  of  sncli  State,  which  sludl  recognize  and  declaie  tluir 
permanent  freedom,  provide  for  their  cdneation,  and  which  may  yet  lie 
consistent,  a■^  a  temporary  arrangement,  with  their  ])rcsent  condition  ;.s 
a  laboring,  landless,  and  homeless  class,  will  not  be  objected  to  by  the 
National  Kxecntive.  And  it  is  suggested  as  not  im|)roper,  that,  in  eoii- 
striicting  a  loyal  State  government  in  any  Slate,  the  name  of  the  .Stale, 
the  bonndary,  the  snbdivisions.  the  Constitiilion,  and  the  general  coile 
of  laws,  as  before  the  rebellion,  be  maintained,  subject  only  to  the 
modifications  made  necessary  liy  the  conditions  heretofore  stated,  and 
sneh  others,  if  any,  not  contravening  said  conditions,  and  which  may 
be  deemed  expedient  by  those  framing  the  new  .Slate  government. 

"To  avoid  niisnnderstanding,  it  may  be  proper  to  say  that  tliis 
Proclamation,  so  far  as  it  relates  to  State  governments,  has  no  nfer- 
ence  to  Slates  wherein  loyal  .State  governments  have  all  the  while  been 
maintained.  And  for  the  same  reason,  it  may  be  proper  to  further  .«:iy, 
that  whether  memliers  sent  to  Congress  from  any  .State  shall  be  ailinilteil 
to  seals  constitutionally,  rests  exclusively  with  the  resiiective  Ibuiso-i. 
and  not  to  any  extent  with  the  Kxecutive.  And  still  further,  that  this 
Proclamation  is  intended  to  i)rosent  the  people  of  the  Stat.'s  wlieiviii 
the  national  aulhorily  has  bei'n  suspended,  and  loyal  State  governiuciits 
h.ave  been  subverted,  a  modi;  in  and  by  which  the  national  and  loyal 
State  governments  may  be  re-established  within  said  .States,  or  in  any 
of  them ;  ami,  while  the  mode  presented  is  tlie  liest  the  Executive  eun 
suggest,  with  his  present  ini|)ressions,  it  must  not  be  understood  that  no 
other  possible  mode  would  be  acceptable." 

TIic  "lily  coiiditioiis  imposed  for  the  bcnelit  of  tlio  bliicks  were 
that  thu  new  Statu  governments  .should  recognize  the  validity  of 


§;!8.] 


LINCOLN  8    I'LAN. 


217 


llic  liiiiiiMcipation  Proclamation ;  and  Lincoln  even  expressed  liis 
aiipidvul  of  a  temporary  arran{,'ement  by  which  they  niiirjit  lie  kept 
for  a  liiiiitL'd  pericul  of  linit;  in  compulsory  aiiprciitici'sliip,  in  order 
to  ;,nii(lually  liahilnate  tiiem  to  freeilom.'"'*  In  cxiiluniition  of  lliis 
sii!,'i,'('sti()n,  lie  said,  in  his  message  to  Congress  contemporary  with 
llif  proclaniati(ju :- — 

"'I'lic  ])n>po8e(l  ncquicscoiieo  by  the  Niitioiinl  Kxcoutivc  in  nny  rca- 
soiiiilili'  li'iiiporiiry  State  arran};enieut  of  the  freed  peoi)le  is  nmde  wllh 
a  view  of  liiudly  modifying;  tlie  conftmioa  and  dcHtitutioii  which  must,  at 
licsl.  iittciid  all  classes  by  a  total  revolution  of  liil)or  Ihrouuliout  whole 
Stiiti'H.  It  is  hoped  that  the  already  ilecply  i.lllicU'd  people  iu  those 
Stales  may  bo  somewhat  more  ready  to  give  up  the  cause  of  their  iilHic- 
tioii,  if,  to  this  extent,  this  vital  matter  be  h'ft  to  themselves;  whili;  no 
power  of  tlie  National  Executive  to  prevent  au  abuse  is  ubridgid  by 
tlie  pi'oiiosition.""" 

Ill'  suggested,  sidjsefpicntly,  to  the  governor  elected  in  fvouisi- 
ana  tliat  the  right  of  suffrage  should  be  exten(le<l  to  a  part  of  I  lie 
hhieks."' 


™  MiPlicixon,  History  of  Iho  Re- 
tiellioii,  |<|>.  117,  US,  Iu  explatiiition 
of  lliis  imirlanialion,  ho  wiid  in  his 
iinnuiil  iMi'!isiip>  to  Congress  of  tiio 
BiniM'  iliilc:  "lint  why  tender  tlio 
tii'inlils  of  this  provi-ion  only  to  a 
Stall' Ki'veriwneul,  si't  np  in  this  par- 
Uiiilar  way?  This  si'i'lion  of  tlio 
Conslilutlou  eonleniplatcs  a  ease 
wlieii'in  Iho  element  within  a  State, 
favoralilo  to  repuhliean  noveinment, 
In  llie  I'nion,  may  bo  too  fceblo  for  au 
0|i|iiisile  and  hoslllo  element  external 
to  or  even  wllhin  tlio  Stale  ;  and  sueh 
are  pnvisely  the  eases  witli  wliieh  wo 
am  now  dealing.  Au  attempt  to 
(juaraiiii'o  and  proteetn  revived  Slate 
govern nii'iit,  eoiiHtriieted  in  whole,  or 
in  pii'iHindi'i-atiny  part,  from  the  very 
eli'iiii'iil,  againHl  wlioso  hostility  and 
viol 'e  11  is  to  lio  [iroteeled,  la  sim- 
ply absurd.  There  must  bo  a  test  by 
wlik'li  to  Hoparalo  tlio  opiiosing  ele- 
laciits  Ko  as  to  build  only  from  the 
foiniil;  and  that  test  is  a  siilUcieutly 
iiberal  one,  whieh  accepts  as  sound 


whoever  will  make  a  sworn  recanta- 
tion of  ills  former  niitfOundni'SM " 
(MeriierKon,  Ill.-^lory  of  1  lie  Kebeillon, 
p.  IKll.  In  his  sp(!eili  of  A|)rii  Uth, 
18(15,  Lini'oln  said:  "This  plan  was. 
In  advance,  submitted  to  tlio  then 
Cabini't,  and  (li.-;tinctly  approved  by 
every  member  of  it.  One  of  thi'ni 
suggested  that  I  should  then,  and  in 
that  connection,  apply  tie'  Kmauciiui- 
tion  Pioclaniati.nl  to  the  tle'ielofoic 
exc-eplcd  parts  of  Virginia  and  Lonisi- 
nna ;  that  I  bliooM  drop  tlio  sugges- 
tion abmit  appreiiticcsliip  for  free 
people,  and  tliat  I  sslioiild  omit  the 
protest  against  my  own  power,  ill  re- 
gard to  the  admission  of  memberH  of 
Coiigi  ess  ;  ijiit  even  lu'  approved  every 
liart  or  pared  of  tli('  plan  wliiih  iias 
since  been  cniployod  or  toiidieil  by 
the  action  of  Ijoui.slaiia "  (iliid.,  p. 
(W'J'.     This  was  Chase. 

'■•  McFlierson,  History  of  tlie  Kelicl- 
lion,  p.  IIG. 

*"  "I  barely  suggest  for  your  pri- 
vuto  eonsideratlon,  whether  some  of 


218 


RECONSTRUCTION. 


[CHAI-.  11. 


Pm-suant  to  this  proclamation,  in  the  spring  of  1HG4,  under 
the  protection  of  the  army,  State  governments  were  organized  bv 
a  minority  of  the  inhahitants  of  Arkansas  and  Louisiana,  —  in  the 
former  State  by  more  than  a  fifth,  and  in  the  latter  by  about  an 
eighth  of  the  number  of  voters  at  the  last  presidential  election.*' 
In  Aikiinsas,  senators  and  representatives  were  elected,  and  ap- 
plied for  admission  to  Congress. 

The  members  of  the  National  Legislature,  however,  were  by  no 
means  satisfied  with  the  action  of  the  President  in  thus  taking  tiie 
initiative  without  consulting  with  them.  Many  of  their  leaders, 
moreover,  not  only  cherished  feelings  of  bitterness  against  tlie 
South,  but  were  more  impressed  than  he  with  the  necessity  of 
ensuring  protecti.m  for  the  emancipated  but  helpless  blacks,  and 
providing  in  the  conquered  States  indenuiity  for  the  past  and 
sepurity  for  the  future.  The  scheme  of  I^incoln  was  dcrideil  as  a 
short-hand  method  of  reconstruction  by  means  of  ten-per-cent  gov- 
ernments.^2 

The  Senate,  June  24th,  18G4,  refused  admission  to  the  senators 
chosen  by  Arkansas  upon  the  following  ground,  stated  in  tlie 
report  of  the  committee  of  the  judiciary : 

"  While  a  portion  of  Arkansas  is  at  this  very  time,  as  the  Coniniittco 
are  informed,  in  the  actual  possession  and  subject  to  the  control  of  the 
enemies  of  the  United  States,  other  parts  of  the  State  are  only  held  in 
subordination  to  the  laws  of  the  Union  by  the  strong  arm  of  military 
power.  While  this  state  of  thingis  continues,  and  the  right  to  exercise 
armed  authority  over  a  large  part  of  the  State  is  claimed  and  exerted 
liy  tiio  military  power,  it  cannot  be  eaid  that  a  civil  government,  set 
up  and  continued  only  by  the  sufferance  of  the  military,  is  tluit  re- 
publican form  of  gorernmeut  ■wliieh  tiie  Constitution  recjuires  tlic 
United  States  to  guarantee  to  every  State  in  the  Union."  " 


the  colored  people  may  not  be  lot  in ; 

as  for  Instance,  thoso  who  hnvo  fouKlit 
gallantly  in  our  raiilvs."  Liiiciiin  to 
Michael  Hiihn,  Mnroh  15,  18(11  (Uliiino, 
Twenty  Years  In  Congress,  vol.  li,  p. 
39). 

*'  In  Arkansas,  for  tlio  now  Consti- 
tution, 12,177;  against  It,  226.  Flsli- 
baek's  Case,  Taft's    Senate  Election 


Cases,  continuod  by  Furber,  p.  205. 
In  Louisiana,  6,830  against  1,506. 
Blaine,  Twouty  Years  in  Cont!reas, 
vol.  II,  p.  40. 

<■•■  HIaino,  Twenty  Years  In  Con- 
gress, vol.  11,  pp.  40-4.1,  79. 

*'■'  Case  of  FIshback  and  Hnxtor, 
Toft's  Honato  Election  Cases,  contin- 
ued by  Furber,  pp.  202-205. 


588.] 


OPPOSITION    TO    LINCOLN. 


219 


Similar  action  was  token  by  the  House.**  At  the  same  session 
(il  Congress  at  which  these  senators  elect  were  refused  admission, 
11  bill  was  passed  which  authorized  the  President  to  ajjpoint  pro- 
visional governors  of  eacli  of  the  States  declared  to  be  in  rebellion, 
witii  authority  to  organize  State  governments  through  an  elec- 
tion hy  the  Avhite  male  citizens  whenever  a  majority  had  taken 
the  oath  of  allegiance,  with  the  exclusion  from  the  franchise  and 
fioiii  eligibility  as  delegates  of  "11  persons  who  had  held  office 
iiiiilei'  the  Confederate  Government.  It  required  that  such  con- 
V, '111 ions  should  insert  in  the  State  constitutions  disfranchisement 
I'liiiii  tlie  rights  to  vote  and  hold  office  in  the  legislature  or  as 
governor  of  all  persons  who  had  held  civil  office  or  a  militorj^ 
ollice  of  the  grade  of  colonel  or  higher  under  the  Confe<leracy  ;  the 
aliolition  of  slavery ;  and  the  repudiation  of  the  Confederate  debt 
and  (lie  State  debt  incurred  during  the  war.  Upon  the  adoption 
of  such  a  Constitution,  the  government  so  established  was  to  be 
recognized  by  the  President  as  legitimate,  and  representatives  in 
lidtii  houses  of  ('ongress  and  the  Electoral  College  were  to  be 
received  from  the  State.  Subsequent  sections  abolished  slavery 
ill  lli(^  States  affected  by  the  bill  and  declared  members  of  the 
(lisfianchi.sed  class  not  to  be  citizens  of  tlie  United  States.  The 
main  points  of  difference  between  the  presidential  and  congres- 
sioiiMJ  plans  at  this  time  were  that  the  latter  required  the  action 
of  a  majority  and  the  former  that  of  only  about  ten  jier  centof  the 
w'i'i'  male  citizens  to  entitle  the  new  State  government  to  recog- 
nition ;  and  that  Congress  also  required  the  adoption  by  the  States 
of  certaui  constitutional  provisions  permanently  excluding  from 
|ioliti;al  power  their  natural  leaders,  Ijesides  repudiating  the  debta 
iiienned  in  aid  of  the  insurrection.  Lincoln  failed  to  sign  this 
hill,  and  Issued  a  proclamation,  which  stoted  as  his  reasons  :  — 

"While  I  am  unprepared,  by  a  formal  approval  of  this  bill,  to  be 
inlloxibly  committed  to  any  single  plan  of  restoration  ;  anil,  while  I 
ain  niso  unprepared  to  deeiaro  that  the  free  State  constitutions  and 
piivoinments  already  adopted  and  installed  in  Arkansas  and  Louisiana 
fliiili  lie  set  aside  and  hold  for  nonght,  thereby  ropoliing  and  dis- 
coiiiiiiiing  the  loyal  citizens  who  have  set  up  tiie  same  as  to  further 
t'lToil,  or  to  declare  a  constitullonal  competency  in  Congress  to  abolish 

•*  DIaiiio,  Twenty  Years  in  CoiiKroBS,  vol.  II,  p.  41. 


20 


UECOJJSTUUCTION. 


[t'llAP.  II. 


shivery  in  States,  but  am  iit  the  same  tiiuu  siucerelj'  hoping  and  ex- 
pectiui^  that  a  constitutional  auieudmeut  abolisiiing  shivt'ry  tbroui;hout 
the  niition  may  lie  adoplutl,  neverliiiilcss  1  am  fully  Butisfied  with  the 
system  for  restoration  contained  in  the  bill  as  one  very  proper  plan  for 
tlie  loyal  people  of  any  State  choosiii<;  to  adopt  it,  and  that  I  am,  and 
at  all  times  siiall  be,  prepared  to  give  tiic  executive  aid  and  assistance 
to  any  such  people,  so  soon  as  the  military  resistance  to  the  United 
States  shall  have  been  suj^jressed  in  !  ny  such  State,  and  the  people 
thereof  shall  have  sulliciently  rctu. iifd  '! -iir  ol)ediencc  to  the  Con- 
stitution and  laws  of  the  United  Hial'  ■•.  ;;i  ■  '  '.i  case  military  goveiiiors 
will  be  appointed,  with  directions  to  proceed  according  to  the  bill."" 


*'  McPliersou,  History  of  the  Re- 
bellion, pp.  317-31!).  "  Coiifjro.-^s  wa.s 
to  a<ljourn  at  noon,  on  lluj  Fourth 
of  July;  the  President  was  at  iVorU  in 
his  room  at  tlio  Capitol,  eif^nin}^  bills, 
which  were  laid  before  him  as  they 
were  broiij^ht  from  the  two  Housi>s. 
When  this  inipdrtunl  bill  was  phioed 
before  him,  ho  laiil  it  aside  and  wont 
on  Willi  the  oilier  work  of  I  he  moment. 
Mr.  Sumner  ami  Mr.  Boulwell,  while 
their  nervousness  was  evident,  re- 
frained from  any  coinment.  Zaehariah 
Chiinilli'r,  who  was  unabashed  in  any 
niorLiil  presnnie,  roundly  asked  tlio 
Presidi'iil  if  ho  intended  to  Kij.;ii  l.ho 
bill.  The  President  replied:  'This 
bill  has  been  placed  before  me  a  few 
minutes  bel'oreC'onj;resM  adjourns.  It 
is  a  niiilter  of  loo  much  iiiiportanci!  to 
bo  swallowed  in  that  w;i  '  If  it  is 

vetoed,'  cried  Jlr.  Chandler,  'it  will 
damaKO  us  fearfully  in  the  Northwest. 
TluMcnporlaut  point  is  that  one  pro- 
hibiting; slavery  in  the  riMMinslructeil 
States.'  Mr.  Lincoln  said:  'Tliatis 
thoiioint  on  which  I  doubt  the  aulhor- 
ily  of  Conf;i'e>-s  to  act.'  '  It  is  no 
nion^  th.iii  you  have  done  yomvelf,' 
s.iid  the  Senator.  The  I'rc.iideiil 
answered  :  '  I  eoni'eive  that  I  may  in 
an  emeigiMicy  do  Ihiiins  on  ndlitary 
Hioimds  whicdi  cannot  be  done  coiisli- 
tulicinally  by  CouKiess."  Mr.  Chainl- 
ler,  expressing  his  deep  chagrin,  went 


oat,  and  the  President,  addressing  liio 
laenib.  IS  of  the  Cabinet  who  wwa 
seated  with  him,  said,  'I  do  not  see 
how  any  of  us  now  can  <li'ny  or  o"n- 
tradlcl  that  Congress  has  no  eon:  tiiii- 
tloual  power  over  slavery  in  tlio 
States.'  Mr.  I'e.-senden  e.Nprosscd  liis 
entire  agreement  with  this  view.  'I 
have  even  had  my  doubts,'  ho  »:ii(l. 
'as  to  tliii  constitutional  cITlciicy  of 
your  own  decree  of  (unaneipation,  iii 
those  cases  where  it  has  not  been 
carried  into  effect  by  the  actual  ml- 
vance  of  the  army.  The  President 
said:  'Tliis  bill  .ind  tl.o  position  of 
these  gentleme'  i.oui  io  mo,  in  assert- 
ing that  the  ii.  ■  ,  :t-  'I'Di-yStalcsaro 
no  longi'r  ii.  i  i  o  '>■'.,  1o  nialic  the 
fatal  ailmissicv-  >'  .  ;nl.  .whenever 
they  please,  may  of  i  '.■'•  i.v.ii  nio'.ivo 
dissolve  their  connoc  •)  '  vitli  the 
Union.  Now  wo  eannot  survive  that 
adnda^ion  I  am  convinced.  If  tint  bo 
true,  I  am  not  President  ;  the-c  gcn- 
tli'nien  are  not  Congress.  1 
laboriously  endeavored  to  avoid  i:iiit 
ipiestioji  ever  since  it  llrsi  began  U)  he 
asserted,  and  thus  to  avoid  confiisiiui 
and  disturliance  in  our  own  eoniicils. 
It  was  to  ol'viute  this  liiicBtion  lliiitl 
earnestl>'  si.' red  tho  movement  fcr 
an  amei:  i  lun'  abolishing  slaxcrv, 
which  pass.  1  ■  .■■  So  ate  and  fad'd  in 
till'  House.  :  tiuoigiit  it  much  lidiiT 
it  it  were  possible  to  rostoro  the  tiiiou 


§  ■•^•] 


OITOSITIOX    TO    laNCOLN. 


221 


Mi'iiiiwhilc  his  lenient  treatment  of  tiie  Southern  Stiitcs  had 
lauseil  considerahle  ill-feeling  tow.irds  him  iimony  le;uler.s  of  the 
lU'jiuhlican  party  out  of  Coiifrress  as  well  as  in  it.  A  move- 
iiiiiit  to  secure  his  defeat  in  the  convention  and  the  nomination 
in  his  jjlace  of  Governor  Tod  of  Ohio  had  heen  supported  by  a 
number  of  other  war  governors ;  but  the  will  of  the  people  was  too 
.strong  for  them.^"  After  Lincoln's  renomination,  and  the  adjourn- 
ment of  Congress,  Senator  Benjamin  F.  Wade  of  Ohio,  and  Henry 
Winter  Davis  of  Maryland,  the  chairmen  of  the  Committees  on 
tliu  Uiibellious  States  of  the  two  houses  of  Congress,  united  iu  a 
proti'st  published  in  the  New  York  Tribune,  August  iJtii,  18G4, 
ai^itiust  liis  refusal  to  sign  the  Keconstruction  Bill ;  ■*'  but  the  jiaper 
liad  no  effect  except  to  aid  in  defeating  the  renomination  of 
l)avis.« 

liefore  the  presidential  election,  Tennessee  had  also  organized  a 
government  under  Lincoln's  proclamation,  and  presidential  electors 
were  chosen  in  Tennessee  and  Louisiana.  February  4th,  18G5, 
Congress  passed  the  following :  — 

"  ,Ioint  Kesolution  declaring  certain  States  not  entitled  to  reprcsenta- 
tioa  iu  the  electoral  eollep;c :  Whereas  the  inhabitants  and  local 
uiitliorities  of  the  States  of  Virginia,  North  Carolina,  South  Carolinii, 
(icorsiia,  Florida,  Alabama,  Jliasissippi,  Louisiana,  Texas,  Arkansas, 
aiul  Ti'unessee  rebelled  against  tiie  government  of  the  United  States, 
and  were  in  such  condition  on  the  8th  day  of  November,  1804,  that  no 
valid  cleotion  for  President  and  Viee-rresident  of  the  United  States 
aci'didiiig  to  the  Constitution  aud  laws  tliercof  was  held  therein  on  said 
day :  Therefore,  Jie  it  ri'xolvnil,  That  the  States  mentioned  in  the 
picainbit!  to  this  joint  resolutiou  arc  not  entitled  to  representation  iu 
the  electoral  college,  and  no  electoral  votes  shall  be  received  or  counted 
from  said  States."" 


nil  limit  till!  nocosBlty  of  a  violent 
c|iiiirr(<lnmoiiK  itBfrlemlsnslo  whnthor 
icitaln  Slates  linvo  boon  in  or  out  of 
'.lii>  I'nioii  (lining  tho  war  -  ii  inornly 
nu'lapliy.slcNil  i|iio8tiou,  and  one  uii- 
ui'ii'Bsary  to  lio  forccii  into  discus- 
slim '"  (Nicolay  niid  Hay,  Llfo  of 
Liiu'Dlii,  vol.  ix,  pp.  I'iO,  121). 

*'•  Tho  writer  loarni'd  this  from  tlio 
lalo  Judge  Dwight  Foster,  wlio  was 


then  Altornoy-GoniMai  of  Masaachu- 
sotts  under  Governor  Andrew,  who 
sympathized  with  this  niovemeiil. 

"  Mi'Pherson,  History  of  tho  Re- 
bellion, p.  ;t;i2. 

*•  HIaino, Twenty  Years  in  Congress, 
vol.  ii,  p.  44. 

<•'  MePliorfon,  History  of  llie  Ko- 
belUon,  pp.  577-579. 


222 


UECONSTIIUCTION. 


[CIIAI'.  II. 


Lincoln  signed  this  resolution  and  informed  Congress  that  it  — 
"  h;is  been  signuil  liy  tlie  Executive  in  deference  to  the  view  of  Coii- 
^less  implied  in  it^  passage  and  presentatioa  to  liiin.  In  his  own 
view,  however,  the  two  Houses  of  Congress,  convened  under  the 
twelfth  article  of  the  Constitution,  have  complete  power  to  cxchide 
from  counting  all  electoral  votes  deemed  by  them  to  be  illegal ;  and  it 
is  not  competent  for  the  Executive  to  defeat  or  obstruct  tliat  power  hy 
a  veto,  as  would  be  the  case  if  his  action  were  at  all  essential  in  the 
matter.  lie  disclaims  all  rigiitof  tlie  Executive  to  interfere  in  any  way 
in  the  matter  of  canvassing  or  counting  electoral  votes,  and  he  also 
disclaims  that,  by  signing  said  resolution,  he  has  expressed  any  o|)iiiioii 
on  the  recitals  of  the  preamble,  or  any  .iudgment  of  his  own  upon  tiie 
subject  of  tiie  resolution."  ^ 

His  last  piihlio  .speech  was  a  defence  of  this  plan  of  reconstruc- 
tion, in  which,  however,  he  said  that  he  was  not  inflexibly  com- 
mitted to  it.^* 

Lincoln's  death,  however,  on  April  loth,  tSlio,  placed  tiie 
presidency  in  the  liands  of  Andrew  Johnson,  who  was  by  no 
means  qualified  to  acquire  the  leadership,  or  even  to  command 
the  respect  of  the  party  who  had  chosen  lum  Vice-President  in 
order  to  acknowledge  their  obligations  to  the  Union  men  of  tlie 
South.  The  diiliculties  of  the  situation  were  increased  by  tlie 
action  of  (leneral  Sherman,  wlio,  flushed  with  tlie  triumph  of  his 
unparalleled  march  to  the  sea,  three  days  after  Lincoln's  dcatli, 
assumed  to  solve  the  problem  of  reconstruction  in  an  agreement 
for  an  armistice  with  General  Johnston  in  Nortii  Carolina.  In  tliis, 
he  individually  ami  olhchilly  pledged  himself  to  procure  the  neces- 
sary acts  by  his  superiors  for  a  general  amnesty  and  the  inuneili- 
ate  restoration  of  the  seceded  States  to  their  political  position 
before  the  war ;  >•  the  people  and  inhabitants  of  all  these  States  to 
be  guaranteed,  so  far  as  the  Executive  can,  their  political  riglits 
and  franchises,  as  well  as  their  rights  of  person  and  property,  as 
defined  by  the  Constitution  of  the  United  States,  and  of  the  States 
•espeetively "  ;  a  cliiuse  whicli,  if  executed,  might  have  restored 
slavery ;  in  return  for  the  disbandment  of  the  Confederate  iuniy 
and  the  resumption  of  peaceful  pursuits  by  its  oflieers  and  pri- 


60  Mcl'hcrKon,  History  of  the  Bo- 
bolUou,  pp.  577-579. 


"  Ibid.,  pp.  608-610. 


§  a«-] 


SHKR.MAN  S    AUMI8TICE. 


22S 


vales.  'I'liis  agreement  was  promptly  ratified  by  Jefferson  Davis, 
(111  lioiialf  of  the  Confe(.lera(!y,  with  the  approval  of  his  cabinet ; 
lint,  lis  soon  as  received  in  Washington,  it  was  disapproved  by  the 
i'lLsiilent  and  cabinet,  and  Sherman  was  ordered  to  resume  hos- 
tilities immediately.*'^ 

After  at  fii'st  inclining  to  severer  measures  against  the  South, 
inllucnccd  l)y  the  persuasion  of  Seward,"'-''  who  was  still  Secretary 
(if  State.  Johnson  pursued  the  policy  instituted  by  liis  predecessor. 
On  May  2'.)tli,  IStio,  he  issued  a  proclamation  which  directed  the 
administrative  and  judicial  oflicera  of  the  United  States  to  en- 
force tiie  laws  in  Virginia,  and  said  — 

"that,  to  carry  into  effect  the  guaranty  of  tlie  Federal  Constitution  of 
a  leimblicaii  form  of  State  government,  and  afford  the  advantage  and 
security  of  domestic  laws,  as  well  as  to  complete  the  rc-ostablishinent 
of  the  authority  of  the  laws  of  the  United  States,  and  tlie  full  and  com- 
plete restoration  of  peace  within  the  limits  aforesaid,  Francis  H.  I'ier- 
poiiit,  (lovcrnor  of  the  State  of  Virginia,  will  be  aided  by  the  Federal 
Government,  so  far  as  may  be  necessary,  in  the  lawful  measures  which 
he  may  taltc  for  the  extension  and  administration  of  the  State  govern- 
ment tiiroughout  the  geograpliical  limits  of  said  State."  " 

On  May  2!Hli  he  issued  a  proclamation  of  amnest}'  similar  to 
that  of  Lincoln,  with,  however,  more  stringent  exceptions,  in- 
ohiding  in  the  excepted  classes  all  '•  persons  who  have  voluntarily 
participated  in  said  rebellion,  and  the  estimated  value  of  wlioso 
taxable  property  is  over  twenty  thousand  dollars,"  '^'  He  immedi- 
ately ajipointed  provisional  governors  of  the  States  of  North  {!ar- 
oliiia,  .Mississipjii,  Oeorgia,  Texa.s,  Alabama,  South  Carolina,  and 
Florida,  v/itli  instructions  to  each  — 


■'- McPlicrson,  Hi; 'ory  of  tlie  Rfi- 
conslruclioii,  pp.  1'21,  122.  Tho  opiu- 
ious  of  tho  Coiifcdcrato  Ciibini'l  on 
tlio  sulijcct  aro  puliliahcil  in  tho  Now 
York  Sun,  Feb.  U,  18H0 ;  nupra,  §  37, 
over  niilc  !)7. 

"  lilaiuc,  Twenty  Years  In  Con- 
gress, vol.  ii,  pp.  (>7-G8.  As  early  a.s 
Nov.  21,  1HG3,  however,  .lolinson  had 
wjitteii  to  tlm  PoBtniaster-Genonil, 
Miuitgoiiiery  Hliilr  :  "  I  hope  that  tho 
Prosidout  will  not  bo  committed  to 


tho  proposition  of  8tute.s  rclapsintj 
into  Tenilories  and  held  as  such." 
"Tho  iustitution  of  slavery  is  mmc, 
and  th(>re  is  no  good  reason  for  de- 
stroyinf?  the  States  to  brini;  about  tho 
destruction  of  slavery."  (Xlil'hersou, 
History  of  lli'eoustructiou,  p.  1!)9.) 

'*  Mcrherson,  History  of  tlu^  llo- 
eonstruetlou,  p.  8,  See  ir\fra,  over 
note  58. 

«6  Ibid.,  p.  10. 


224 


EECONST  RUCTION. 


[CHAI".  II. 


"at  the  earliest  practicnble  porioil,  to  prescribe  such  rules  nnd  rc<;;iilii- 
tions  as  may  l)fl  necessaiy  anil  proper  for  coiiveninr;  a  convention,  com- 
poseil  of  delogatcs  to  bo  chosen  by  that  portion  of  the  people  of  said 
State  who  are  loyal  to  the  United  States,  and  no  others,  for  the  pin'pose 
of  altering;  or  amending  the  constitntiou  thereof;  and  with  anthority  to 
exercise,  within  the  limits  of  said  State,  all  tiie  powers  necessary  and 
proper  to  eiiablo  snch  loyal  peojjle  of  the  State  of  North  Carolina  to 
restore  s;iid  State  to  its  constitutional  relations  to  the  Federal  Goveru- 
nient,  and  to  present  snch  a  republican  form  of  State  government  as 
will  entitle  the  State  to  the  guaranty  of  the  United  States  therefor,  and 
its  people  to  protection  by  the  United  States  against  invasion,  insurrec- 
tion, and  domestic  violence;  that  in  any  election  that  may  be  hereafter 
held  for  choosing  delegates  to  any  State  convention,  as  aforesaid,  no 
ptrion  shall  be  qualified  as  an  elector,  or  shall  be  eligible  as  a  member 
of  such  convention,  unless  he  shall  have  previously  taken  the  oatli  of 
amnesty,  as  set  forth  in  the  President's  proclamation  of  May  29,  A.  D. 
18G9,  and  is  a  voter  qualified  as  prescribed  by  the  Constitution  and 
laws  of  the  State  of  North  Carolina,  in  force  immediately  before  the 
twentietli  day  of  May,  1801,  the  date  of  the  so-called  ordinance  of  se- 
cession ;  and  the  said  convention,  when  convened,  or  the  legislature 
that  may  be  thcreaf!;er  assembled,  will  prescribe  the  qualification  of 
electors,  and  the  eligibility  of  i)ersons  to  hold  ollice  under  tiie  constitu- 
tion and  laws  of  the  State,  —  a  power  the  people  of  the  several  States 
composing  the  Federal  Union  have  rightfully  exercised  from  the  origin 
of  the  government  to  the  present  time. 

"  And  I  do  hereby  direct :  — 

"F/r,s7,  That  the  military  commander  of  the  department,  and  all  ofli- 
cers  and  persons  in  the  military  and  naval  servioe,  aid  and  assist  tlie 
said  Provisional  Governor  in  carrying  into  efff!Ct  this  proclamation;  and 
they  are  enjoined  to  abstain  from  in  any  way  hindering,  impeding  or 
discouraging  the  loyal  people  from  the  organization  of  a  State  govern- 
ment, as  herein  authorized. 

^'Second,  That  the  Secretary  of  State  proceed  to  put  in  force  all 
laws  of  the  United  States,  the  administiati'^n  whereof  belongs  to  the 
State  Department,  applicable  to  the  geographical  limits  aforesaid. 

"  Third,  That  the  Secretary  of  the  Treasury  proceed  to  nominate,  for 
appointment,  assessors  of  taxes  and  collectors  of  customs  and  internal 
reveiuie,  and  such  otlier  olllcers  of  the  Treasury  Department  as  are  au- 
thorized by  law,  and  put  in  execution  the  revenue  laws  of  the  United 
States  within  the  geographical  limits  aforesaid.  In  making  appoint- 
ineuts,  the  preference  shall  be  given  to  qualified  loyal  persons  residing 


§r,8.] 


JOHNSON  S   PLAN. 


22r) 


within  the  districtB  where  their  respective  duties  arc  to  be  perfonned. 
But  if  suitable  residents  of  the  districts  shall  not  be  found,  then  per- 
sons rcHidiiig  in  other  States  or  districts  shall  be  appointed. 

"7w//(/-/A,  That  the  I'ostmastcr-Cieneral  proceed  to  establish  post- 
olllci'!)  and  post-routes,  and  put  into  execution  the  postal  laws  of  the 
Uniti'il  States  within  the  said  State,  giving  to  loyal  residents  the  prefcr- 
oniv  of  appointment ;  but  if  suitable  residents  are  not  found,  then  to 
apiMiint  agents,  &c.,  from  other  States. 

••  Fifili,  That  the  district  judge  for  the  judicial  district  in  which 
Norlh  Carolina  is  included,  proceed  to  hold  courts  within  said  State,  in 
apconlance  with  the  provisions  of  the  act  of  Congress.  The  Attorney- 
(luncnd  will  instruct  the  proper  ofllcers  to  libel,  and  bring  to  judgment, 
conliscatiou  and  sale,  property  subject  to  confiscation,  and  enforce  the 
administration  of  justice  within  said  State  in  all  matters  within  the  cog- 
nizance and  jurisdiction  of  the  Federal  courts. 

••  Si.i-lh,  That  the  Secretary  of  the  Navy  take  possession  of  all  pub- 
lic property,  belonging  to  the  Navy  Department,  within  said  geograph- 
iciii  limits,  and  put  in  operation  all  acta  of  Congress  in  relation  to  naval 
alTiiirs  having  application  to  the  said  State. 

'•  Si'rciiili,  That  the  Secretary  of  the  Interior  put  in  force  the  laws 
relating  to  the  Interior  Department  applicable  to  the  geographical  limits 
aforesaid."'" 

I'nder  the  immediate  supervision  of  the  President,  wlio  sent 
ciinstiiiit  instructions  in  teiCgrams  signed  by  himself  or  the 
Secretary  of  State,  and  issued  thirteen  thousand  pardons  within 
nine  months  to  members  of  the  excepted  classes  wlio  seemed  will- 
ini^-  to  nid  his  pcdicy,  the  governors  called  conventions  which 
jirocccilud  to  amend  the  State  constitutions.  These  repealed  or 
(Icclaicd  null  and  void  the  ordinances  of  secessioti.  All  but 
5Iississippi  declared  slavery  to  be  abolished ;  and  most,  under 
lii(ssui(!  by  the  President,  annulled  their  war-debts  and  ratified 
till'  Thirteenth  Amendment,  which  abolished  slavery,  altliough 
sonic  with  the  qualification  that  the  ratification  was  "  with  tlie 
uinlci-stiinding  that  it  does  not  confer  upon  Congress  the  power 
to  legislate  upon  the  political  status  of  freedmen  in  tiiis  State."  ^' 
Tliereupon  they  immediately  elected  membei-s  of  Congress  and 


'"  MePherson,  History  of  tho  He- 
construetion,  pp.  11-12. 

"  Alaliiima.    Similar  uro  tho  ratifl- 


cations  of  South  Carolina  and  Florida. 
Ibid.,  pp.  18-28 ;  Blaine,  Twenty  Years 
in  Congress,  vol.  II,  p.  76. 


'226 


RECONSTRUCTION. 


[chap.  H. 


State  legislatures  which  elected  senatora.  In  Virginia,  Johnson 
liad  recogni/x'd  tlie  I'iorpoint  government,  headed  by  Francis  I[. 
Pierpoint,  who  had  been  elected  governor  in  18(51  by  a  cnn- 
vention  composed  mostly  of  residents  of  what  subsequently 
became  West  Virginia.^  All  its  archives  and  property  were 
taken  from  Alexandria  to  Richmond  in  an  ambulance.™  Pier- 
point  called  together  a  legislature  which  reorganized  the  gov- 
ernment without  a  convention,  after  having  obtained  by  a  vote 
of  the  people  authority  to  amend  the  State  Constitution.""  In 
Louisiana,  Arkansas,  and  Tennessee,  Johnson  respected  the  State 
governments  organized  during  the  life  of  Lincoln.  All  these 
proceedings  were  instituted,  and  most  of  them  completed,  while 
Congress  was  not  in  session.  When  the  Thirty-ninth  Congress 
assend)led  in  December,  1865,  senators  and  representatives  from 
nearly  all  these  States  were  ready  to  i)resent  their  credentiiils 
for  adn)ission.  Many  of  them  could  not  take  the  iron-clad  o;i'Ji 
and  were  excepted  from  the  proclamations  of  amnesty.  Amongst 
these  wiis  Alexander  IL  Stephens,  the  Vice-President  of  the  late 
Confederacy.  The  President  informed  Congress  in  his  message 
that  a  restoration  of  loj'al  State  governments,  accompanied  by  the 
abolition  of  slavery  and  obedience  to  the  laws  and  government  of 
the  United  States,  had  been  established  in  all  the  seceded  States, 
except  Florida  and  Texas,  where  — 

"the  people  are  making  commendable  progress  in  restoring  thoi.- 
State  governments,  and  no  doubt  is  entertained  that  they  will  :it  an 
early  period  be  in  a  condition  to  resume  all  their  practical  relations 
with  the  Federal  government.' '  " 

He  said  further :  — 

"The  full  assertion  of  the  powers  of  the  General  Government 
requires  the  liolding  of  Circuit  Courts  of  the  United  States  within  the 
districts  whore  their  authority  has  been  interrupted.  In  the  present 
posture  of  our  public  affairs,  strong  objections  have  been  urged  to 
holding  those   courts   in   any  of   the  States  where  the  rebellion  lias 


"  McPhersou,  Ilistory  of  the  Eo- 
construetion,  y.  H ;  mipra,  over  notes 
17,  3,'i,  54;  and  §  HG,  over  note  59. 

'^  Blaine,  Twenty  Years  in  Con- 
gress, vol.  ii,  p.  79. 

00  McPliersou,  History  of  liio   Ro- 


construetion,  p.  26 ;  Cox,  Thri'ci  Dc- 
cades  of  Federal  Legislation,  pp.  I-'-- 
424. 

»i  McPherson,  History  of  the  Ke- 
coustructlou,  p.  67. 


CHAP.  ir. 


§38.] 


JOINT  COJIMITTEE   ON   KECONSTUUCTION. 


227 


exisltil:  iiiitl  it  was  nsorrtiiiiicd,  by  inquiry,  tiiat  tlie  Circuit  Court  of 
till'  I  iiittnl  States  would  not  ha  held  within  the  district  of  Virginia 
iliirinji  the  mitunin  or  early  winter,  nor  until  Congress  should  have  '  an 
opportunity  to  consider  and  act  on  the  whole  subject.'  To  your  delibera- 
tions tlu;  restoration  of  this  branch  of  the  civil  authority  of  the  United 
States  is  therefore  necessarily  referred,  with  the  hope  that  early  pro- 
vision will  be  made  for  the  resumption  of  all  its  functions.  It  is 
iiiniiift'st  that  treason,  most  flagrant  in  character,  has  been  committed. 
IVrsous  who  are  charged  with  its  commission  should  have  fair  and 
Impartial  trials  in  the  highest  civil  tribunals  of  the  country,  in  order 
that  the  Const'tution  and  the  laws  may  be  fully  vindicated ;  the  truth 
fli'aily  established  and  affirmed  that  treason  is  a  crime,  that  traitors 
siionkt  be  punished  and  the  offence  made  infamous ;  and,  a'  the  same 
time,  that  the  question  be  judicially  settled,  finally  and  forever,  that  no 
State  of  its  own  will  has  the  right  to  renounce  its  place  in  the  Union."  '* 

On  December  ath  Georgia  ratified  tlie  Thirteenth  Amendment. 
Tlie  United  States  were  then  thirty-six  in  number,  of  which 
twenty-seven  constituted  three-fourths.  Georgia  was  the  twenty- 
■  seventh  State  to  ratify,  and  on  December  18th,  Seward,  the  Secre- 
tary of  State,  filed  a  certificate  under  the  seal  of  his  department, 
stilting  that  the  amendment  had  been  adopted.  Subsequently,, 
four  of  the  lo)nil  States  and  one  of  the  former  members  of  the 
Confederacy  also  ratified  this  amendment.  But  even  after  the 
votes  by  those  four  loyal  States  were  added,  it  has  never  ob- 
tained the  requisite  ratification  by  tlu"ee-fourths  of  the  States,, 
uiik'ss  the  validity  of  this  action  by  the  governments  of  the 
funner  insurgent  States,  organized  by  Lincoln  and  Johnson,  is 
recognized."^ 

Tiie  majority  of  both  Houses  lost  no  time  in  manifesting  their 
opposition  to  the  policy  of  the  President.  The  usual  courtesy 
of  tlie  privileges  of  tlie  floor  pending  the  decision  as  to  their 
lulinission,  was  not  extended  to  the  Southern  representatives.^  On 
Decemlier  IStli,  1865,  a  joint  committee  on  Reconstruction  was 
appointed,  with  instructions  to  "  inquire  into  the  condition  of  the 


«=Iliicl.,p.  r,5. 

'''  Il)i(l.,  p.  6.  Seward  was  critlcizod 
at  V.\"  lime  for  hiH  recogultion  of  the 
validity  of  tills  action  liy  thf)  iiisnr- 
t-'init  Siulos.    i^Duuuiug,  The  Coustitu- 


tlon  in  Reconstruction,  Pol.  So.  Q.,  vol. 
il,  p.  591.) 

«*  lilaino,   Twenty  Yoars   In    Con- 
gress, vol.  il,  pp.  112,  113. 


228 


ItECONSTKlOTION. 


[(.'MAP.  II. 


Stiites  wliicli  formed  tlic  scwiillcil  foiifeilerate  States  of  Aiiu'iica 
uiid  it'iHirt  wlietlicr  tlie^'  or  any  of  tliciii  are  entitled  to  he  rc'inc- 
seiited  in  either  House  of  Conjij^ress,  with  leave  to  report  hy  hill 
or  other\Aise."  Tiie  report  was  not  made  until  June  IStli.  18(!(). 
In  the  meantime,  the  leg'islatures  an<l  jieople  of  the  former  Con- 
federate States  under  their  new  constitutions  had  acted  with  jfreat 
indiscretion,  in  view  of  the  perils  of  their  situation.  They  refused 
to  comjily  with  Johnson's  recommendation  to  "extend  the  elec- 
tive franchise  to  all  persons  of  color  who  can  read  tlie  Constitutinii 
of  the  I'nited  States  in  English  and  write;  their  names,  and  to  all 
pri-sons  of  color  who  own  real  estate,  valued  at  not  less  than  two 
luuidied  and  lifty  doUai-s  and  pay  taxes  thereon."'"  Jlany  persons 
•who  had  not  received  anmesty  were  elected  to  high  oilice,  ami 
different  statutes  were  enacted  grossly  oppressive  to  the  freed 
blacks,  which  made  them  liahle  to  he  "hired  out"  for  six  nioiitlis 
to  the  highest  bidder,  as  vagrants,  and  their  children  to  appren- 
ticeship to  their  former  owners ;  subjt'cted  them  to  arrest  and 
compulsory  service  in  case  of  a  breach  of  a  contract  of  employ-. 
ment ;  and  in  one  State,  Louisiana,  compelled  agricultural  lal>orers 
to  make  labor  contracts  within  the  first  ten  days  of  .January,  to 
be  in  force  for  an  entire  year,  compliance  with  which  could  be 
compelled  by  justices  of  the  peace.  I'oU-taxes  without  rcpresoiiti- 
tion  were  also  imposed  upon  them,  in  some  States,  and  in  one 
Stiite  at  least  were  collected  by  the  compulsory  labor  of  the  de- 
linquents."'' 


"5  Johnson  recommonded  this  in  a 
fh'oular  Irttor  to  tho  provisional  rov- 
crnors  whom  ho  iipiioinliMl.  In  a 
ti'ioRrani  to  Governor  W.  L.  Sharkey 
of  Mississippi,  Aiignst  15,  1865,  lie 
naid  that  liy  such  action  "You  would 
coniplctcly  disarm  tho  adversary 
and  set  an  oxaniplo  tho  other  States 
■will  follow.  This  you  can  do  with 
perfect  safety,  and  you  thus  Jilaco 
tho  S(Uithorn  States,  in  refcrenco  to 
free  persona  of  color  upon  tho  same 
basis  with  the  free  Slates.  I  hoiio  and 
trust  your  convention  will  do  this, 
"nd  as  a  consequence,  tlio  radicals, 
who  are  wild  upon  negro  franchise, 


will  bo  complotely  foiled  in  tlioir  nl- 
ternpt  to  ijcep  Iho  Southern  S.ads 
from  renewing  their  relations  to  tiio 
Union  by  not  accejiting  their  seiiat<irs 
and  representatives."  (Ibiil.,  pp.  Hi 
82;  JI<'rherson,  Histoi-j-  of  the  Iteiim- 
struetion,  p|).  1!),  20.) 

o"  See  abstracts  of  these  statutes  in 
McPhc-rson,  History  of  the  Kecciii- 
struetion,  pp.  20-44;  Blaine,  Twenty 
Years  in  Congr<'ss,  vol.  ii,  pp.  01  100; 
and  Cox,  Three  Decades  of  I"i  dcnil 
Legislation,  pp.  414-410.  This  sudji'ct 
will  bo  considered  subsequently  in  tlic 
discussion  of  tho  Fourteenth  Amcud- 
ment 


§3H.] 


JOINT   COMMITTEE   OX    KKCONSTIJUOTrON. 


'2->0 


Tlic  report  of  the  Joint  Coininittee  on  l{ccon.struction,  like  most 
imjiorlaiit  state  (locuuieiits  of  tiie  Aiiglo-Saxt)n  race,  was  liased 
upon  coniproniisc,  and  nieiitione<l  witiiout  too  nmeh  rej^ard  to 
Idi^'ical  eonsistenuy,  each  tlicory  tliat  could  l)e  applied  to  snpport 
tlio  measures  which  it  recoinniended.  The  hegiiuiing  stated  the 
conilition  of  the  insurgent  Statt  it  the  close  of  tlie  Civil  War 
ami  tlie  di;claration  of  the  President  that  thej-  were  "deprived 
of  all  civil  government."     The  Committee  continued :  — 

"These  Confederate  States  embrace  a  portion  of  the  people  of  the 
Union  who  Lml  been  in  a  Biatc  of  revolt,  but  had  been  reduced  to  a 
stato  of  obedience  by  force  of  arms.  Tliey  were  in  an  abnormal 
ciiiulilidii,  without  civil  government,  witliont  connnercial  connections, 
witiiout  national  or  international  relations,  and  subject  only  to  martial 
law.  l?y  withdrawing  their  representatives  in  Congress,  by  renomieing 
tlie  piivileiic  of  representation,  bj'  organizing  a  separate  govennnent, 
ami  by  levying  war  against  the  United  States,  tliey  destroyed  their  Stato 
Constitutions  in  respect  to  the  vital  principle  which  connected  their 
rospcctive  St.ates  with  the  I'nion  and  secured  their  federal  relatiouii ; 
and  nothing  of  those  constitutions  was  left  of  which  the  United  States 
were  liound  to  take  notice.  For  fi.nr  years  they  had  a  dc  far/o  govern- 
ment, but  it  was  usurped  and  illegal.  They  chose  the  tribunal  of  arnv* 
wlii-rcin  to  decide  whether  or  not  it  should  be  lefialized,  and  they  wci'o 
lUl'outed.  At  the  close  of  the  Kebellion,  therefore,  the  people  of  the 
rebellious  States  were  found,  as  the  President  expresses  it,  '  deprived 
of  all  civil  fiovernment.'  Under  this  state  of  all'airs  it  was  plainly  the 
iliiiy  of  the  President  to  enforce  existing  national  laws,  and  to  establish, 
as  far  as  ho  could,  such  a  system  of  governmetit  as  might  be  provided 
fur,  by  existing  national  statutes.  As  eomiiiander-in-ehief  of  a  vic- 
toiions  army,  it  was  his  duty,  inider  the  law  of  nations  and  the  army 
rcjinlations,  to  restore  order,  to  preserve  property,  ■  1  to  protect  tho 
people  a<;ainst  violence  from  any  quarter  until  provision  should  be 
Miaile  by  law  for  their  government,  lie  might,  as  I'resident,  assemble 
Conijress  and  submit  the  whole  matter  to  the  law-making  power ;  or  he 
nii<:iit  continue  military  supervision  and  control  until  Congress  should 
assemble  on  its  regular  appointed  day.  Selecting  the  latter  alternative, 
111'  proceeded,  by  virtue  of  his  power  as  eonunander-in-chief ,  to  ai)point 
provisional  governors  over  the  revolted  States."  "  It  cannot,  we 
tliiul<,  be  contended  that  these  governors  possessed,  or  could  exercise, 
any  but  military  aufliority.  They  had  no  power  to  organize  civil 
guvennncnts  nor  to  exercise  any  authority  except  that  which  inhered  ia 


280 


RECONSTUUCTIOX. 


[CHAl'.  II, 


tlii'ir  own  persons  under  their  commioBions.  Neither  had  the  Pri'suKni, 
ns  commnnder-in-chief,  any  otliur  militiiry  power.  IJiit  he  wns  in 
exclusive  possession  of  tlio  military  authority.  It  was  for  him  to  di'i'ide 
how  far  he  would  exercise  it,  how  far  he  would  relax  it,  when  and  (jm 
what  terms  ho  would  withdraw  it.  He  might  properly  permit  the  people 
to  assemble,  and  to  initiate  the  local  governments,  and  to  execute  such 
local  laws  as  they  might  choose  to  frame  not  inconsistent  with,  nor  in 
opposition  to,  the  laws  of  the  United  States.  And,  if  satisfied  that 
they  might  safely  be  left  to  themselves,  he  might  withdraw  the  military 
forces  altogether,  and  leave  the  people  of  any  or  all  of  these  States  to 
jjovcrii  themselves  without  his  interference."  "  Hut  it  was  not  for  him 
to  decide  upon  the  nature  or  effect  of  any  system  of  government  wiiieh 
tlie  people  of  these  States  might  see  (1  idopt.  This  power  is  lodged 
by  the  Constitution  in  the  Congress  L'nited  States,  that  branch 

of  the  government  in  which  is  veste..  .uithority  to  fix  the  political 

relations  of  the  States  to  the  Union,  whose  duty  is  to  guarantee  to  each 
State  a  republican  form  of  government,  and  to  protect  each  and  all 
of  them  against  foreign  or  domestic  violence,  and  against  each  other. 
AVe  cannot,  therefore,  regard  the  various  acts  of  the  President  in 
relation  to  the  formation  of  local  governments  in  the  insurrectionary 
States,  and  the  conditions  imposed  by  him  upon  their  action,  in  any 
other  light  than  as  intimations  to  the  people  that,  as  comtnander-in- 
chief  of  the  army,  he  would  consent  to  withdraw  military  rule  just  in 
oroportion  as  they  should,  by  their  acts,  manifes'.  a  disposition  to 
.  ireserve  order  among  themselves,  establish  goverumenta  denoting 
loyalty  to  the  Union,  and  exhibit  a  settled  determination  to  return  to 
their  .allegiance,  leaving  with  the  law-making  power  to  fix  the  terms  of 
their  final  restoration  to  all  their  rights  and  privileges  as  States  of  the 
Union."  After  referring  to  the  message  of  the  President  urging  the 
speedy  restoration  of  these  States  to  their  former  condition  in  the  Union, 
the  report  continued:  "The  impropriety  of  proceeding  wholly  on  the 
judgment  of  any  one  man,  however  exalted  his  station,  in  a  matter 
involving  the  welfare  of  the  republic  in  all  future  time,  or  of  adopting 
any  plan,  coming  from  any  source,  without  fully  understanding  all  its 
bearings  and  comprehending  its  full  effect,  was  apparent."  The  fact 
that  military  force  was  still  employed  and  the  writ  of  habeas  corpus  not 
yet  restored  in  the  States  affected  was  then  stated.  The  southern 
theory  was  summarized  and  rejected  as  "  not  only  wholly  untenable, 
but,  if  admitted,  would  tend  to  the  destruction  of  the  government." 
"  Whether  legally  and  constitutionally^  or  not,  they  did,  in  fact,  with- 
iiraw  from  the  Union  and  made  themselves  subjects  of  another  govern- 


§38,] 


■lOrNT   COMMITTEE   OX   IIKOONSTIUTTION. 


281 


imrit  of  their  own  prpntion."  "  Your  committee  does  not  deem  it 
(iiliiT  iiPCB»snry  or  projwr  to  diflcUHH  tiio  qiicHtion  wliotluT  tlie  Inte 
tiiiil'i.'denitc'  StntPH  are  still  Statt'S  of  tiie  Union,  or  csin  cvou  be  other- 
wise, (imntinj;  tlim  profUlcMS  abstraction  about  which  ho  many  words 
have  lieen  wimted,"  it  by  no  means  follows  that  the  people  of  those 
Stutcs  limy  not  place  themselves  in  u  condition  to  abrof^ate  the  powers 
ami  privileges  incident  to  a  State  of  the  Union,  and  deprive  themselves 
vi  all  jjretence  of  rifj^ht  to  exercise  those  powers  and  enjoy  those 
piivileges.  A  JState  within  the  UuioUr  has  obligations  to  discharge  as  a 
iiiciiiber  of  the  Union.  It  must  submit  to  federal  laws  and  uphold 
tVdcra'  authority.  It  must  have  a  government  republican  in  form, 
iiiiilt'r  and  by  which  it  is  connected  ith  the  General  (iovernment,  and 
through  which  it  can  discharge  its  obligations.  It  is  more  than  idle,  it 
is  a  mockery,  to  contetul  that  a  people  who  have  thrown  off  their 
allegiance,  destroyed  the  loo;d  government,  which  bound  their  States  to 
the  Union  as  members  thereof,  defied  its  authority,  refused  to  execute 
its  laws,  and  abrogated  every  provision  which  gave  them  political 
rights  with  the  Union,  still  retain,  through  all,  the  perfect  and  entire 
right  to  resume,  at  their  own  will  and  pleasure,  all  their  privileges 
witbiu  the  Union,  and  especially  to  participate  in  its  government,  and 

that  tlio  seceded  Stotes,  so-oalled,  are 


«'  In  his  last  speech,  March  17, 1865, 
Liiu'iiln  had  said:  "I  have  been 
Bhunn  a  letter  on  this  subject,  sup- 
poHi'd  to  be  an  able  one,  lu  which  the 
writer  expresses  regret  that  iny  mind 
liHs  not  Boomed  to  be  defluitely  fixed 
(in  till  question  whether  the  seceded 
States,  so-called,  are  in  the  Uulou  or 
"lit  of  it.  It  would,  perhaps,  add 
ustoiiislmient  to  his  regret  were  ho 
to  learn  that,  since  I  have  found 
]'rof(}.ss('d  Union  men  endeavoring  to 
niaki'  that  question,  I  have  purpnitely 
forhonio  any  public  expression  upon 
it.  Art  ap|)eara  to  me,  that  question 
lias  not  lieen,  nor  yet  is,  a  practicully 
mali'iial  one,  and  that  any  (liHcussl"U 
of  it,  while  it  thus  remains  ])ractlcally 
Immaterial,  could  have  no  effect  other 
than  the  mischievous  one  of  dividing 
our  friends.  As  yet,  whatever  it  may 
iicreaflcr  become,  that  question  Is 
liad  as  the  basis  of  a  controversy,  and 
fjood  for  nothing  at  all  — a  merely 
pernicious  abstraction.    We  all  agree 


out  of  their  prop(?r  practical  relation 
with  the  Union,  and  that  the  solo  ob- 
ject of  the  Government,  civil  and  mil- 
itary, of  tliose  States,  is  to  again  get 
them  into  that  proper  practical  rela- 
tion. I  believe  It  is  not  only  possible, 
but  In  fact  easier  to  do  this  without 
deciding,  or  even  conBi<lering,  whether 
these  States  have  over  been  out  of 
the  Union,  than  with  it.  Finding 
themselves  sofely  at  homo,  it  would 
bo  utterly  immaterial  whether  they 
had  ever  been  abroad.  Let  us  all  join 
in  doing  the  a(;ts  necessary  to  restor- 
ing the  jiroper  practical  relations  be- 
tween those  Slates  and  the  Union,  and 
each  forev(>r  after  Innocently  indulge 
his  own  opinion,  whether,  in  doing 
the  acts,  ho  brought  the  States  from 
without  into  the  Union,  or  only  gave 
them  proper  ossistauce,  they  never 
having  been  out  of  it."  (McPherson, 
History  of  the  Eebelllon,  p.  609.) 


232 


KECONSTR  UCTION. 


[chap.  II. 


to  control  the  conduct  of  its  affairs.  To  aiimit  such  a  principle  for  one 
inoiiicnt  would  be  to  declare  that  treason  is  always  master  and  loyally 
a  blunder.  Such  a  principle  is  void  by  its  very  nature  ftnd  essence, 
because  inconsistent  with  the  theory  of  government,  and  fatal  to  its 
very  existence.  On  the  contrary,  we  assert  that  no  portion  of  the 
people  of  this  country,  whether  in  State  or  Territory,  have  the  right, 
while  remaining  on  its  soil,  to  withdraw  from  or  reject  the  authority  of 
the  United  States.  They  must  obey  its  laws  as  paramount,  and 
acknowled-fe  its  jurisdiction.  TJiey  have  no  right  to  secede;  and  wliile 
they  can  destroy  their  State  government,  and  place  themselves  beyond 
the  pale  of  the  Union,  so  far  as  the  exercise  of  State  privilege;  is 
concerned,  they  cannot  escape  the  obligations  imposed  upon  them  Ijy 
the  Constitution  and  the  laws,  nor  impair  the  exercise  of  national 
autliority.  The  Constitution,  it  will  be  observed,  does  not  act  upon 
the  people;  whl.e,  therefore,  the  people  cannot  escape  its  authority, 
the  States  may,  througli  th.e  act  of  their  people,  cease  to  ex'st  in  an 
organl/i'  1  form,  and  thus  dissolve  their  political  relations  with  the 
United  titates."  The  obligations  of  the  North  to  the  freedmtn  and  the 
ditllculties  arising  from  the  original  provisions  of  the  Constituliun 
concerning  the  proportion  of  representatives  were  then  stated.  Olijec- 
tioua  were  raised  to  the  regularity  of  the  proceedings  for  the  election  of 
representatiwS  from  the  south,  and  it  was  said:  "  Your  committee  arc 
accordingly  forced  to  the  conclusion  that  the  States  referred  to  iiave 
not  placed  themselves  in  a  condition  to  claim  representation  in  Congress, 
unless  all  the  rules  wl.ieh  liave,  since  the  foundation  of  the  GovernnK'nt, 
been  deemed  es^  .jiial  iu  such  cases  should  be  disregarded."  'I'hc  dis- 
loyal temper  of  the  South,  as  proved  by  the  evidence  taken  before 
them,  was  then  set  forth  : 

"With  such  evidence  l)efore  them,  it  is  the  opinion  of  your  com- 
mittee — 

"  I.  That  the  States  lately  in  rebellion  were,  at  the  close  of  the  war, 
disorganized  communities,  without  civil  government,  and  without  C(n- 
stitutions  or  other  forms,  by  virtue  of  which  political  relations  conhl 
legally  exist  between  them  anil  the  Federal  Government. 

"II.  That  Congress  cannot  be  expected  to  recognize  as  valid  the 
election  of  representatives  from  disorganized  comniuuitics,  which,  from 
the  very  nature  of  the  case,  were  unable  to  present  their  claim  to 
representation  under  those  established  and  recognized  rules,  the  obser- 
vance of  which  lias  been  hitherto  re(piired. 

"  III.  'I'liat  Congress  would  not  lie  juslilied  in  admitting  such  com- 
niuuities  to  a  participation  in  the  government  of   the  country  witliuut 


K  m,  J 


§38.] 


.lOIXT    COMMITTKK   ON    IIECONSTKUCTION, 


233 


liist  iirDviilinn;  such  constitutional  or  other  guarantees  as  will  tend  to 
sociMv  tlie  civil  rights  of  all  citizens  of  the  IJepiiblic ;  a  just  equality  of 
ivpii'soiitatioii ,  protection  against  claims  founded  in  rebellion  and 
eiiiiU' ;  a  temporary  restoration  of  the  right  of  suffrage  to  those  who 
liavo  not  aetively  participated  in  tlie  efforts  to  destroy  the  T.'niou  and 
ovi'itlirow  the  Government;  and  the  exclusion  from  positions  of  public 
trust  of  at  least  a  portion  of  those  whoso  crimes  have  proved  them  to  be 
eiK'inies  to  the  Union,  and  unworthy  of  public  confidence." 

It  was  s;ud  that  the  State  of  Tennessee  occuiiied  ii  position  apart 
from  all  the  other  insurrectionary  States  ;  and  it  was  the  subject 
of  II  separate  report  which  recommended  its  immediate  restoration 
to  full  rijL,dits  in  the  Union. 

■'Till'  conclusion  of  your  committee,  therefore,  is,  that  the  so-called 
Coiil'iMlerate  States  are  not  at  present  entitled  to  representation  in  the 
Coiijrn'ss  of  the  United  States;  tliat,  before  allowing  such  representa- 
tidii,  aileiinate  security  for  future  peace  and  safely  siioiild  be  required; 
that  this  can  only  be  found  in  sii'.-li  changes  of  tlie  organic  law  as  siinll 
ileteniiine  the  civil  riglits  and  privileges  of  all  citizens  in  all  parts  of 
tlio  Ke|)iiblic,  shall  place  representation  on  an  equitable  basis,  shall  fix 
astiirnia  upon  treason,  and  protect  the  loyal  people  against  future  claims 
for  the  expenses  incurred  in  support  of  rebellion  and  i"')r  manumitted 
slaves,  togetlier  with  an  express  grant  of  power  in  Congress  to  enforce 
these  provisions.  To  this  end,  they  offer  a  joint  resolution  iov  ainend- 
iim  the  Constitution  of  the  United  States,  and  the  two  several  bills  de- 
signed to  cany  the  same  into  etTect,  before  referred  to." 

'riic  minority  report,  which  was  signed  b}-  the  three  Denioeratie 
ineiiiliers  of  the  committee,  set  forth  the  Southern  theory,  ami 
eliiiuied  tliiit  the  excluded  States  were  entitled  to  immediate  tiii- 
t'diniitioiial  admissiou."** 

Aeeompanyiiijj:  the  report  of  tliC  majority  was  the  l'\nirleentl» 
Aiiieiidment  of  the  C'onstitutii  ii  in  a  form  slij^htly  different  from 
its  liiiiil  adoption.     This  had,  in  fact,  lieeii  reported  (ui  April  oOtlj, 


'■'  liotli  ropoits  (ire  printed  in 
MirhcMson,  History  of  Ilivoiistnir- 
tliiii,  pp.  H4-U)l.  The  luajdi-lty  report 
Willi  thccvideiiee,  wliieli  in  wi'U  worth 
I'linriil  stiiily,  WHS  printoil  liy  llie 
dm crniiKMil  rrini lii«  Oflli'i'.  The  ma- 
jorily  weio  W.  V.  Fessendeu,  .James 


W.  Grimes,  Irit  Harris,  ,1.  it.  How- 
ard, Ocor^o  H.  Wiiliaiiis,  Tliaddeus 
Slevi'iis,  Kliliu  ]5.  Wiislilmrne,  .Instill 
S.  Morrill,  .luhn  A.  Uiii),'ham,  Itoweoo 
Conliliiit;,  (icdr^e  H.  Iloiitwi'll,  Hi'iiry 
T.  l!lciw.  TIki  iniiioilty,  ItoviM-ily  John- 
sou,  A.  J.  l{ot!ers,  Heury  Grider. 


234 


RECONSTUUCTrON. 


[cirAi-, 


1806,  more  than  a  month  before  the  ju'esentation  of  the  full  ruimrt 
of  the  Committee.  The  Committee  also  reported  to  their  rcsppot- 
ive  houses  two  bills.  Of  these,  one  declared  cerfcrin  persons  tliciein 
designated,  including  high  Confederate  officials  and  Confederates 
who  had  held  high  Fede'  al  office,  ineligible  to  office  under  tlic 
Government  of  the  United  States.  The  other  was  "  A  bill  to  pro- 
vide for  restoring  the  Stiites  lately  in  insurrection  to  their  full 
political  rights."  It  provided  that  whenever  the  Fourteeiitli 
Amendment  should  have  become  a  part  of  the  Constitution  of  tliu 
United  States,  the  senators  and  representatives  duly  elected  from 
any  State  lately  in  insurrection,  which  should  ratify  the  same  ami 
modify  its  constitution  and  laws  in  conformity  therewith,  should 
be  admitted  into  Congress  upon  taking  the  required  oatlis  nf 
office.*^^  Neither  of  these  bills  was  passed;  but  Congress  8ul»- 
sequently  enforced  their  provisions. 

The  Fourteenth  Amendment  finally  passed  through  Congress, 
June  13th,  1866.  It  would  have  been  well  for  the  Southern  States 
had  they  immediately  accepted  it.  For  then  each  would  have  re- 
tained the  control  of  the  right  of  suffrage  within  its  jurisdiction; 
the  country  would  have  been  saved  the  evils  that  resulted  from 
the  sudden  entrance  of  a  horde  of  ignorant  blacks  into  the  enjoy- 
ment of  a  right  which  most  of  them  were  unfit  to  exercise  ;  ami 
the  provisions  for  an  increase  of  representation  in  proportion  to 
enfrancdiisement,  together  with  the  influence  of  the  democratic 
s[)irit  of  the  people  and  the  age,  would  have  undoubtedly  pro- 
<luced  a  method  by  which  universal  suffrage  would  have  been 
gradually  extended  to  their  children.  The  Southern  people,  how- 
ever, had  too  great  confidence  in  the  power  of  the  Fxecutivo  to 
obtain,  by  the  use  of  his  patroni'-.  '  and  prerogatives,  those  right» 
to  which  the}'  thought  themselves  entitled  by  the  Consvitutioii. 
Contrary  to  the  hope  of  the  North,  the  amendment  was  rLJei'ted 
between  October,  18ti6,  and  March,  1867,  by  the  almost  isiiani- 
mous  votes  of  the  legislatures  of  all  the  insurrectionary  States 
except  Tennessee,  while  it  received  the  ratification  of  all  the  loyal 
Stiites,  exce{)t  the  border  States  of  Delaware,  Maryland  and  Ken- 
tucky, and  the  Pacific  State  of  California,  the  last  of  whom  rejecteil 
it  in  lfMi8.  On  July  20th.  1868,  after  its  adoption  by  six  of  the 
•»  McPliorson,  History  ol  tho  BoconBtruotlon,  pp.  103,  104. 


AX.. 


§  98.] 


FOUHTKENTH    AMENDMENT. 


285 


cyiluded  States  under  the  i)ressure  of  the  new  reconstmction 
li'^nslation,  it  was  finally  declared  adopted  hy  the  Secretary  of 
State  on  that  day,  and  by  Congress  July  21st.  It  was  subse- 
<liuMitly  ratified  by  the  other  disfranchised  States  as  a  condition  to 
their  restoration  to  representation  in  Congress. 

'i'liis  established  citizenship  of  the  United  States  with  the  right 
of  i)rotection  for  its  privileges  and  immunities  from  the  laws  of 
am  State.  It  also  imposed  upon  the  States  the  inhibition  previ- 
ously in  force  against  the  United  States,  and  existing  in  most,  if 
not  all,  State  constitutions  which  forbade  the  taking  of  life, 
libcity,  or  property  without  due  process  of  law,  and  further 
foibade  tliem  to  deny  any  person  within  their  jurisdiction  the 
ecpial  protection  of  tiieir  laws.  It  provided  that  representation 
slioiild  be  apportioned  according  to  population,  excluding  Indians 
not  taxed,  but  that  whenever  the  right  to  vote  for  the  choice  of 
presidential  electora,  rejiresentatives  in  Congress,  or  the  executive, 
judicial,  or  legislative  officers  of  the  State,  was  denied  to  any  male 
inhabitants  twenty-one  years  of  age  and  citizeirs  of  the  United 
States,  or  in  any  way  abri '  !.  except  for  participation  in  rebel- 
lion or  other  crime ;  the  ba.-,m  of  represontion  therein  should  be  re- 
duced in  the  proportion  that  ilic  umiber  of  such  male  citi/ci  .s 
bore  to  the  whole  number  of  male  riti  ,  us  twenty-one  years  of 
age.  The  pardoning  power  of  the  President  was  limited  by  im- 
pc  Ing  a  disability  to  hold  the  office  of  memlicr  of  either  house  of 
Congress,  presidential  elector,  or  any  civil  or  military  office  un(!  r 
the  United  States,  or  under  any  Stiite,  upon  any  iieraon  who 
after  taking  an  oath  as  a  member  of  Congress,  ctbcer  of  the 
United  States,  or  State  officer,  to  support  the  Federal  i  'onstitution, 
had  taken  part  in  the  rebellion.  But  Congress  was  permitted, 
hy  a  vote  of  two-thirds  of  each  house,  to  remove  such  disal  dity. 
Tlie  validity  of  the  public  debt  of  the  United  States.  .  uding 
del  its  incurred  for  pensions  and  bounties  for  services  n.  Uie  Civil 
War,  was  affirmed,  but  it  was  ordained  that  neither  the  United 
States  nor  any  State  should  assume  or  pay  any  debt  or  obligation 
incurred  in  time  of  insurrection  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slaves.™ 

During  the    investigation  by  the  Joint  Committee  on  Recon- 

""  The  coDstruotton  of  tho  Fourteenth  Amendment  1b  discussed  8ub8e(iuently. 


230 


KECONSTKUCTION. 


[chap.  II. 


struction,  Johnson  had  vetoed,  Fehruary  17th,  18G6,  an  act  to 
establish  a  new  Freednieu's  Bureau,  which  reorganized  and  gave 
new  powers  to  a  hrauuli  of  the  War  Department  esbibli.shed  for  the 
relief  of  the  freednien  and  refugees  during  the  war ;  and  Marcii 
27th,  a  civil  rights  bill  which  sought  to  secure  equality  in  civil 
rights  for  whites  and  blacks. 

The  latter,  Avhich  was  passed  under  color  of  the  Thirteenth 
Amendment,  was  clearly  unconstitutional.'^'  Support  for  the  for- 
mer was  sought  iinder  the  war-power.  The  President,  in  his  mes- 
sage, thus  proteste<l  against  such  an  assumption :  "  Let  us  not 
unnecessarily  disturb  the  commerce  and  credit  and  industry  of 
the  country  liy  declaring  to  the  American  people,  and  to  the  world, 
that  the  United  States  are  still  in  a  condition  of  civil  war."  Ilis 
position  was,  however,  weakened  by  the  fact  that  the  wiit  of  iia- 
beas  corpus  was  still  suspended  in  the  South,  and  that,  wliile  tiie 
bill  was  before  him,  the  army  there  was  taking  measures  for  the 
suppression  of  disloyal  papers."^ 

Congress  retaliated  by  the  joint  resolution  :  "■  That,  in  order  to 
close  agitation  ujjou  a  question  which  seems  likely  to  disturb  the 
action  of  the  government,  as  well  as  to  (piiet  th(^  minds  of  the 
people  of  the  eleven  States  which  have  been  declared  to  be  in  iiir 
surrection,  no  senai-ir  or  representative  shall  be  admitted  into 
either  branch  of  Congress  from  any  of  said  States,  until  Congress 
shall  have  declaretl  such  State  entitled  to  such  representation."""^ 

On  April  2d,  Jolmson  issued  a  proclamation  declaring  ■•  tiwt 
the  insurrection  which  heretofore  existed  in  the  States  of  (ieorgia. 
South  Carolina.  Virginia,  North  Carolina,  'i'eniiessce,  Alal)aMiii, 
Louisiana,  Arkansas.  .Mississij)pi,  and  Florida,  is  at  an  end,  and  is 
henceforth  so  to  be  regarded.""*  The  preamble  recited  the  run- 
gressional  rt'solulion  ])reviously  <juoted,'"'  and  ('outlined  an  argu- 
ment in   support  of  his   theory    of    reconstruction.     Texas    wiis 


"  Civil  RiKlils  C:i8c'»,  10!)  U.  fi.,  .1. 
A  piiiiilar  net,  Iuiwi'vit,  whs  upheld  at 
Circuit  by  Cliiof  Justice  ChaHc,  in  Tur- 
ner's CaHc,  1  M.liolt,  V.  a.  20,  anil  Mr. 
■lusticcSwavii  iu  U.  S.  r.  KliO(lc.«,  1 
AliliotI,  U.  S.  '.'S. 

"-'Heo  M'  i'licrsoTi,  Historj-  of  tlio 
EeconstructioM,  j).  1213, 


'■'  Tliis  passed  llie  House,  Fcli.  20, 
18G0,  liy  n  vote  of  1(1!)  to  43;  and  lla' 
Senate,  by  a  vole  of  2i)  to  18,  Manli 
2d  (McPlu^rson,  Histor,'.  of  tlie  lie- 
const  ruct  ion,  p.  72). 

■'  Ibid.,  pp.  l,-)-17, 

"'•  Supra,  over  nolo  14. 


§;]8.] 


RECOGNITION   OF   TEACE. 


237 


exrc]it('(l  by  him.  On  August  20th,  18GG,  he  issued  another  proc- 
luiiiiitioii,  in  which  he  dechired  that  the  insurrection  in  Texas  was 
at  an  end,  and  was  to  be  lienceforth  so  regarded;  and  concluded: 
"  1  do  further  proclaim  that  the  said  insurrection  is  at  an  end, 
and  tiiat  peace,  order,  tranquillity  and  civil  authority  now  exist 
tliniMghout  the  whole  of  the  United  States  of  America.""*'  Tliat 
tliis  established  the  date  of  the  close  of  the  Civil  AVar  was  subse- 
(picntly  recognized  by  Congress  and  the  courts." 

In  the  meantime,  by  the  consent  of  the  Chief-Justice  of  the 
rnitcd  States,  the  district  and  circuit  courts,  tiien  held  b}'  the 
disdict  judges  and  tlie  justices  of  the  Supreme  Court,  resumed 
tlifir  jurisdiction  in  the  South,  under  the  direction  of  the  Presi- 
dent, as  fast  as  the  provisional  organizations  were  effected.'* 
('(int,nvss,  by  an  act  passed  .Tuly  23d,  18(i(!,'^  divided  them  into 
judicial  circuits,  and  tiie  Senate  confirmed  nominations  by  the 
I'lvsident  of  district  judges,  district  attorneys,  and  marslials  for 
tluni.""  The  Chief-Justice  liimself.  and  Mr.  Justice  Wayne,  the 
otiicr  Supreme  Court  justice  assigned  to  hold  court  there,  declined 
tliemselves  to  sit  in  these  States  Avbile  the  protection  of  the  army 
was  needed.*'  On  April  3d,  1866,  the  Supreme  Court  ordered 
tiiat  the  writs  of  errors  and  appeals  from  tiie  circuit  and  district 
courts,  in  the  States  previously  declared  to  be  in  rebellion,  be 
called  at  the  next  term.*'^ 

Meanwhile,  public  sentiment  in  the  North  was  crystallizing 
aijainst  Johnson;  and  liis  opponents  in  Congress  consequently 
increased  in  power.  An  act  to  continue  the  former  Freedmen'a 
Hureau.  which  was  vetoed  by  him  Jul}-  l(!th,  1806,  was  on  the 
.same  day  re-passeu  by  the  necessary  two-thirdo  of  both  houses.*" 
On  the  23d,  Congress  passed  the  following  — 

Stipplomeiit  to  the  Keponstructlon 
Bill,  July  10,  1807. 

"  Sno  lottoi-  of  Chief  Justice  Chase 
to  Prcpidont,  .lolinson,  Oct.  12,  lK(i5. 
(Cliaae'B  Decisions,  p,  i);  Applotori'a 
Annual  Eiicyclopicillnfor  lH(l(i,  p.  514;) 
and  Aildivs.s  of  Ciiief  Justice  Chase  to 
the  bar  of  Norlli  Carolina,  in  June, 
1807,  Chase's  Decisions,  p.  152, 

»-2a  Willi.,  viil. 

*'^  McPlierson,  History  of  the  Re- 
construction, p.  151;  U  St.  at  L,  361. 


■"  llcPhersou,  History  of  the  Kc- 
foiisi ruction,  pp.  l',)l-190. 

•■  I'.S.  r.  Anderson,  it  Wall.,  50,  The 
Trotccldr,  12  Wall.,  700;  Adtjer  r.  Al- 
6011,  If)  Willi.,  500.  Burke  v.  Milten- 
liciKcr,  1!)  Wall.,  510,  525;  March  2, 
lw;7,  1+  St.  at  L.,  422,  §  2. 

•■'  DiiiiiiinK,  The  C'oastitution  In 
liccniisin.elion,  I'ol.  Sc.  Q.,  vol.  11, 
p.  TuU. 

■"  14  SI.  at  L.,  200. 

"  Johusou's    veto    of    the  .Second 


238 


KECONSTHUCTION . 


[CHAI'.  II. 


"Joint  Resolution  restoring  Tennessee  to  her  relations  to  the 
L'nion :  — 

"  Whereas  in  the  year  eighteen  hundreil  and  sixty  one,  the  govern- 
ment of  the  State  of  Tennessee  was  seized  upon  and  taken  possession  of 
by  persons  in  hostility  to  the  United  States,  and  the  inhabitants  of  said 
State,  in  pursuance  of  an  act  of  Congress,  were  declared  to  be  in  a 
state  of  insurrection  against  the  United  States ;  and  whereas  said  State 
government  can  only  be  restored  to  its  former  political  relations  in  the 
Union  by  the  consent  of  the  law-making  power  of  the  United  States; 
and  whereas  the  people  of  said  State  did,  on  the  twenty-second  day  of 
February,  eighteen  hundred  and  sixty  five,  by  a  large  popular  vote, 
adopt  and  ratify  a  constitution  of  government  whereby  slavery  was 
abolished  and  all  ordinances  and  laws  of  secession,  and  debts  contracted 
under  the  same,  were  declared  void ;  and  whereas  a  State  government 
has  been  organized  under  said  constitution  which  has  ratiiied  the  amend- 
ment to  the  Constitution  of  the  United  States  abolishing  slavery,  also 
the  amendment  proposed  by  the  Thirty-ninth  Congress,  and  has  done 
other  acts  proclaiming  and  denoting  loyalty ;  Therefore 

"  Be  it  resolved  by  the  Senate  and  House  of  Representatives  of  tlie 
United  States  of  America  in  Congress  assembled.  That  the  State  of 
Tennessee  is  hereby  restored  to  her  fornicr  proper,  practical  relations 
to  the  Union,  and  is  again  entitled  to  be  represented  by  Senators  and 
Representatives  in  Congress." 

The  next  day,  the  President  approved  the  bill ;  but  accompanied 
his  approval  with  a  message  protesting  against  the  preamble :  — 

"  Among  other  reasons  recited  in  the  preamble  for  the  declarations 
contained  in  the  resolution  is  the  ratification  by  the  State  government 
of  Tennessee,  of  '  the  amendment  to  the  constitution  of  tlie  United 
States  abolishing  slavery,  and  also  the  amendment  proposed  by  the 
Thirty-ninth  Congress.'  If,  as  is  also  declared  in  the  preamble,  '  said 
State  government  can  only  be  restored  to  its  former  political  relations 
in  the  Union  by  the  consent  of  the  law-making  power  of  the  United 
States,'  it  would  really  seem  to  follow  that  the  joint  resolution  which,  at 
this  late  day  has  received  the  sanction  of  Congress,  should  have  been 
passed,  approved  and  placed  on  the  statute  books  before  any  amend- 
ment to  the  Constitution  was  submitted  to  the  Legislature  of  Tennessee 
for  ratification.  Otherwise,  the  inference  is  plainly  deducible  that  while, 
in  tile  opinion  of  Congress,  the  people  of  a  State  may  be  too  stronijly 
disloyal  to  be  entitled  to  representation,  they  may,  nevertheless,  during 
the  suspension  of  their  '  former  proper  practical  relations  to  the  Union,' 
have  an  equally  potent  voice  with  other  and  loyal  States  in  propositions 


§- 


38.] 


ENCKOACIIiMKNTS  UY  COXGKESS  O.     TH  .  KXECUTIVE.     239 


to  iimeiul  the  Constitution,  upon  whicli  so  essentially  depend  the  stabil- 
itv,  [irosperity,  and  very  existence  of  the  nation."*'' 

During  the  summer,  Johnson  weakened  liis  policy  in  the  North 
])y  ii  .series  of  iiijiulicious  speeches  made  by  him  when  he  was 
".swinging  around  the  circle,"  as  well  as  at  Washington.  In  one 
of  tiiese  he  said :  "  We  have  seen  hanging  upon  the  verge  of  the 
Government,  as  it  were,  a  body  called,  or  which  assumes  to  be, 
the  Congress  of  the  United  States,  while,  in  fact,  it  is  a  congress 
of  only  a  part  of  the  States."  ^  The  elections  in  the  fall  largely 
increiiHed  the  Kepublicau  majority  in  the  loyal  States,  while  the 
excluded  States  went  lieavily  Democratic,  and  rejected  the  terms 
of  reiulniission  which  had  been  proposed  to  them. 

At  the  meeting  of  Congress  in  Decerabei',  1866,  the  dominant 
party  now  felt  that  they  had  gained  sufficient  strength  to  over- 
come the  influence  of  the  Executive.  The  control  of  the  purse 
and  the  means  of  starving  the  President  into  submission  were  in 
their  hands,  for  use  if  they  1)elieved  that  their  constituents  would 
approve  such  a  revolutionary  measure.  Each  house  had  the  ex- 
clusive power  to  determine  as  to  the  admission  or  exclusion  of  its 
members ;  but  the  first  steps  in  the  organization  of  the  lower 
house  and  the  consequent  control  of  the  later  proceedings  lay  in 
a  majority  of  those  wiio  v.^ere  on  the  roll  wliich  was  called  by  the 
clerk  of  the  preceding  body.  It  was  known  that  Joluison  had 
considered  the  plan  of  recognizing  a  House  and  Senate  in  the  next 
Congress  composed  of  the  members  from  the  Southern  States  and 
the  followers  of  liis  policy  in  the  North.  In  that  way,  ho  might 
have  obtained  a  quorum  of  both,  and  could  then  have  claimed 
tliat  the  Northern  majority  was  a  rump  which  had  no  legal  right  to 
act  alone.  As  commander-in-chief  of  the  army,  he  might  use  force 
to  install  the  bodies  which  he  recognized  in  the  Capitol,  leaving 
the  rest  to  organize  in  some  outside  hall.  It  was  rumored  that  he 
had  sought  to  tamper  Avith  General  Grant  in  order  to  induce  tlie 


**  Mcriiorson,  History  of  the  Ro- 

oonstniction,  pp.  152,  153. 

*^  .Tolinsou'sBpocoh  from  tho  execu- 
tlvo  iiiiinsion  at  Washington,  Aug.  18, 
18fiO,(iii()t(Hl  in  hisnrticlosof  impoach- 
iiient,  X  (Impeachment  Trial,  vol.  I, 
p.  8;.    Thoro  is  a  marked  Ulllorenoo 


between  Johnson's  speeclies,  which 
woro  usually  undignlfled  and  eomo- 
tlmos  vulgar,  and  his  veto  messages 
and  other  State  papers,  whlcli  iirodlg- 
nillod  and  masterly.  In  tlio  prepara- 
tion of  tho  latter  he  had  the  assistance 
of  Seward  and  Staubery. 


240 


KECOXSTUUCTrON. 


[chap.  II. 


latter  to  aid  him  in  such  a  contest,  but  that  Grant  not  only  refused 
aid  hut  threatened  to  (h'ive  .sueh  a  l)ody  out  of  the  Capitol  at  tlie 
point  of  tliu  hayonet,  though  recognized  by  Joluison  as  a  lawful 
Congress.  * 


*»  fininl  tosliflod  ns  follows  bcforo 
the  House  Coimuiltoo  on  tho  Jiuliciiiry, 
July  IK,  ls(',7  :  "  Q.  Hiivo  yoi;  at  iiny 
timo  heni'd  tho  Prosidont  luuko  nuy 
iem.iik«  in  rcforcncu  to  iidiulBsiou  of 
nienibors  of  (.'origresH  from  tho  ruliol 
Stales  into  eilhof  liousoV  A.  I  cnnuot 
say  positivoly  what  I  hoard  hiiu  say 
on  tho  Buliji'ct.  I  have  hoard  liim 
say  as  niuih,  jiorhaps,  in  his  puhlishod 
speeches  last  sunnner,  as  I  overheard 
him  say  at  all  upon  that  sul)joit.  I 
have  heard  him  say  —  and  I  think  I 
have  hoard  him  say  It  twice  in  his 
speoL'hoa  —  that  it  tho  North  carried 
the  elections  by  members  enough  to 
give  thom,  with  tho  southern  mem- 
bers, n  majority,  wliy  would  thoy  not 
bo  tho  Congress  of  tlio  United  States  ? 
I  liave  heard  him  say  that  several 
times. 

"By  Mr.  Williams:  Q.  Wlien  you 
say  '  tho  North  '  you  moan  tho  demo- 
cratic party  of  the  North,  or  in  other 
wonts  the  party  favoring  his  policy? 
A.  I  moan  if  tho  North  carried  enough 
members  in  favor  of  tho  admission  of 
tho  South.  I  did  not  hear  him  say 
that  he  would  rocoguizo  thom  as  Con- 
gress. I  merely  heard  him  ask  tho 
(luestion,  'Why  would  they  not  bo  the 
Congress? ' 

"  By  tlio  Chairman  :  Q.  When  did 
j'ou  hoar  him  say  that?  A.  I  lieard 
him  say  that  in  one  or  two  of  his 
speeches.     I  do  not  recollo<'t  wiiore. 

"  By  Mr.  Boutwoll :  Q.  Have  you 
heard  him  make  a  remark  kindred  to 
that  elsowhero?  A.  Yes ;  I  have 
heard  him  say  tiiat  aside  from  his 
speeches,  in  conversation.  I  cannot 
Bay  just  when.  It  was  probably  about 
that  same  time. 


"  Q.  Have  you  hoard  him,  at  iiny 
time,  make  any  rcMuark  or  suggesMou 
concendng  the  legality  of  Congress 
with  tin)  Southern  monibors  exeludoil? 
A.  H.i  alhi<led  to  tliat  subject  fre- 
i|Uontly  on  his  tour  to  Cliicago  ami 
liack  last  summer.  His  speeches  were 
generally  reported  with  cousiderablo 
accuracy. 

"Q.  Did  you  lioariiim  say  anytliing 
In  private  on  that  sulijcct,  either  dur- 
ing that  trip  or  at  any  other  timu? 
A.  I  do  not  recollect  spt^cialiy. 

"Did  you  at  any  time  iioar  Idni 
make  any  remark  concerning  tlio  e.v- 
ecutive  department  of  tho  govern- 
ment? A.  No.  I  never  hoaril  liim 
allude  to  that. 

"  Q.  Did  you  ever  hear  him  niuko 
any  remark  looking  to  any  controversy 
between  Congress  and  tlio  Exociilive? 
A.  I  think  not "  (McPherson,  History 
of  tlio  Kocouslnietion,  p.  303).  Bkiiiio 
was  convinced  that  Grant's  testimony 
established  tho  falsity  of  this  rumor 
aliout  Johnson  (Twenty  Years  in  Cod- 
gress,  vol.  ii,  pp.  343-314). 

On  tho  other  hand  Clrant  aftorwanls 
told  tho  following  story,  as  roportod 
l)y  Chauncey  M.  Ueiiow,  in  The  New 
York  Sun  of  Oct.  21, 18(1,'),  and  corrobo- 
rated by  Frederick  D.  flrant. 

"Ho  had  perfected  a  scheme  to  ac- 
complish this  result,  and  with  Gcner.il 
Grant's  assistance  its  success  was  as- 
sured. Ho  would  by  proclamalinu 
direct  tho  robol  States  to  sen<l  to 
Washington  thoir  full  quota  of  Sena- 
tors and  Representatives.  Ho  had  as- 
surances from  enough  members  from 
tho  North,  who,  united  with  them 
would  make  a  quorum  of  one  House  at 
least  it  not  both.     Tho  Congress  thus 


§38.] 


KXCROACHMP:yTS  nv  CONOItKSS  OK  THK  EXECmvK.     241 


(^ne  of  the  first  steps  of  Congress  was  to  provide  for  the  legiility 
of  tlie  orgnniziition  of  tlie  suc^ceeding  IIou^c  of  Hei)ro.s('iitiitives  in 
l';ivtii-  (if  tile  Xortli.  A  bili  passed  tlie  House,  Deeenilier  lltii, 
ISiiri.  iiiid  tlie  Senate,  February  1st,  18()7,  by  a  vote  of  more  than 
twii-tliirds  of  each,  wliieh  beeanie  a  law  without  the  President's 
.si;aiiatuie,  and  provided  :  — 

•''lliat  before  tlie  first  meeting  of  tlie  next  Congress,  and  of  every 
sii]ise(|ii(Mit  Coiigresa,  tlic  clerk  of  tlie  next  preceding  House  of  Repre- 
st'iitntivos  sliall  make  a  roll  of  tlie  representatives-elect,  and  place 
ilier.'oii  the  names  of  all  persons  claiming  seats  as  representatives-elect 
from  Stall's  wiiieh  were  represented  in  the  preceding  Congress,  and  of 
such  iH'iscins  only,  and  whose  credentials  show  that  they  were  regularly 
clfctod  ill  aecordanee  with  the  laws  of  their  States  respectively,  or  the 
laws  (if  the  I'nited  States."" 

A  liill  was  also  passed  directing  that  the  Fortieth  Congress 
iiiict  (111   March  4th,    1807,  immediately  upon   the  close  of   the 


formi'd  lio  wnuld  recoguizo  and  install 
iit  llii!('iipit(il.  If  the  ollior  Norlhern 
uiiMiiliiTS  (lid  not,  c'hooso  to  join  th(?y 
ivinild  li()  a  po\v(;rk'ss  rump  mooting 
in  Minio  hall.  To  tlio  Goneral's  sug- 
;;osi;on  that  tldw  would  start  tho  civil 
war  aficsli,  the  rrosldent  repiiiHl : 
'Tiii'v  who  do  it  will  lio  retiols,  but 
if  .vu\i  sustain  mo  resistance  is  impos- 

.--n.ic.' 

■  II(^  apjicalod  to  Grant  to  stand  by 
him  in  the  crisis  and  they  would  be 
til''  saviiirs  of  tho  republic.  After 
eiidcaviiriug  for  a  long  time  in  vain  to 
(Oiiviiicc  the  President  of  the  folly  of 
fui  h  a  courso  and  its  certain  failure, 
no  laii'icr  who  sustaiuod  it,  Grant 
lin.illy  told  liim  that  ho  (Grant)  would 
drivi'  the  Congress  so  constituted  out 
of  the  Capitol  at  the  point  of  the 
tiayoiii't,  f,'ivo  possession  of  tho  build- 
in;;  to  llio  Senators  and  Koprcsenta- 
tivis  from  tho  loyalStatos  and  protect 
till  111.  If  npc(!88ary  ho  would  appeal 
to  till' country  and  the  army  ho  had 
so  recently  mustered  out  of  service. 
Mr.  .lohnson  asked  him  if  he  did  not 
recognize  the  powers  vested  in  the 


President  by  tho  Constitution,  and  if 
ho  would  refuse  to  obey  the  Comman- 
der-in-chief. Gen.  Grant  said  that 
under  such  circumstances  ho  most 
certainly  wouhl. 

"  Shortly  afterward,  the  President 
sent  for  Grant  and  said  to  him  that 
tho  relations  of  our  Government  with 
Mexico  were  very  delicate,  and  ho 
wislied  him  to  go  to  tho  City  of 
Jloxico  at  once  on  a  very  important 
mission.  The  General  know  that  this 
was  to  got  him  out  of  tlie  way  and  put 
it  In  tho  power  of  the  President  to 
call  as  his  successor  to  Washington 
some  ofTlcer  upon  whom  ho  could  rely. 
Ho  replied  that  if  the  appointmont 
was  a  diplomatic  one,  ho  declined  it. 
If  it  was  n  military  one,  ho  refused  to 
obey,  because  tho  General  of  the 
army  could  not  bo  ordered  to  a  for- 
eign country  with  which  wo  are  at 
peace.  Tho  interview  was  a  stormy 
one,  but  tho  subject  was  dropped." 
See  as  to  this  last  suggestion  by  John- 
son to  Grant,  Blalno,  Twenty  Yeara 
In  Congress,  vol.  11,  p.  351. 

8'  14  St.  at  L.  397. 


'J42 


nECONSTKUCTlON. 


[chap.  II. 


'I'liirty-iiiiiUi  Coii^n'css,  so  that  the  PrL'sidont  niiirlit  not  hiivc  a 
Viicatioii  bftwi't'ii  Miiifh  and  Duceiuher  in  wliicli  to  act  witlioiit 
I'onjrressioiial  contiol. '"'* 

Till'  powi'i's  upon  which  the  Piesident  relied  in  liis  controversy 
were  tlic  power  to  pardon  those  whom  Congress  liad  detenniiiid 
to  de[)rive  (if  political  rijflits ;  the  power  to  remove  from  ollice 
such  I'"c(lt'ral  ollicial.s  us  opposed  his  views;  and  the  power  to 
control  tlie  army  as  coniniander-in-chief.  ICaeh  of  these  powers 
was  attacked  in  turn.  The  power  to  pardon  was  expressly 
granted  hy  the  Constitution.'*"  An  act  passed  during  the  w.u'"* 
liad  exi)ressly  authorized  the  President  to  grant  pardons  hy  ]ii(i(- 
himation.  'i'his  statute  was  repealed  hy  a  vot(!  of  more  than  two- 
thirds  <if  both  houses,  and  the  repeal  Itccanie  a  law  without  the 
signature  of  tlie  President."'  It  was  generally  l)elievcd  that  tlii.s 
repeal  was  ineffectual,  since  the  constitutional  power  to  pardon 
might  be  exercised  by  proclamation  as  w'ell  as  by  letters  patent; 
and  the  Presitlent  after  the  repeal  exercised  the  jjower  by  ])Vol- 
lamation  as  freely  as  before."^  On  September  7th,  1807,  and  July 
4tii,  IhtiS,  lie  issued  proclamations  which  pardoned  all  except 
those  under  indictment  for  treason  or  other  felony;  and  on 
I)ecend)er  lioth,  ISCiS.  l)y  proclamation  lie  pardoned  all  the  nst.''' 
The  Fourteenth  .Amendment,  however,  prevented  his  jjiu'iloiis 
from  restoring  to  full  civil  riglits  the  most  influential  persons 
affecteil  without  llie  consent  of  two-thirds  of  Congress.  Smli 
relief  from  disability  was  extended  by  Congress  sparingly  durinj; 
his  administration.  Since  then  Congress  has  gradually  renioveil 
the  disabilities  of  nearly  all. 

The  powers  of  the  President  as  Conuuander-in-Chief  were 
effectually  limited.  A  section  in  the  Army  Appropriation  hill 
provided  that  the  headquarters  of  the  general  of  the  army  should 
be  in   Wasiiingtoii ;  that  all  orders  and  instructions  relating  to 


"9  14  St.  nt  L.  377. 

*■»  Const  it  uliou,  Art.  II,  Snc.  2. 

i'»  Aol  of  July  17, 18C2;  12  St.  at  L. 
592. 

»i  11  St.  at  L.  377.  Tlio  bill  passed 
the  House,  Dec.  3,  18(10,  iiud  the  Sen- 
iito,  Jiui.  7,  1SC7.  MePluM-son,  His- 
tory ot  tlic  liiH'oustruetion,  p.  183. 


^''  Seo  IJlaino,  Twonly  Years!  of  •'' in- 
gress, vol.  ii,  pp.  281,  282.  Tlii-^  suli- 
jeet  will  bo  eonsidernd  mbsequciitly 
in  the  chapter  on  The  Exin'Utivo 
I'ower. 

"^  MePherson,  History  of  tlie  Uo- 
construction,  pp.  3-42,  344,  111). 


^;5S.j      llNCKOACIf.MKNTH    IIV   ( ONii  liKSS   ON    Tllll   i:X  KCITIN  I,.     J43 


iiiilitaiv  (i]ici'ali(iiis  issiicd  liy  tlic;  I'l'fsidi'iit  or  Sccictiirv  of  \\'ur 
tihiiiil;!  1)1'  issiit'd  lliroiiuli  liim  ;  that  lu;  slioulil  not  1)l.'  iciiiovihI  or 
iissiguc'd  to  <liity  I'lsmvlicre,  exct'pt  at  liis  own  rt'(jui'.st  witli  llio 
previous  a[)[)roval  of  tlio  Seiiati' ;  that  any  onlcrs  rulatinij  to  mili- 
tary ojn'ralions  issuuil  hy  thi;  I'residuiit  or  Seci'etary  of  War,  otliur- 
wise  than  through  him,  Hhouhl  he  null  luul  void;  that  iiiiy  ollieur 
uhii  issued  sM(di  orders  shoiihl  he  deemed  f^nilty  of  a  nns(h'nieunor 
ill  iillicc;  and  that  any  ollicer  of  the  army  who  knowingly  trans- 
mitted or  oi)eye(l  such  onU-rs  should  he  liahle  to  imprisonment 
upon  eonvi('ti()n  in  any  court  of  competent  jurisdiction.  'I'his 
piaetically  made  (ieneral  Cirant  commander-in-chief,  and  reduced 
the  jiowers  of  the  I'resident  in  tliis  resjiect  to  the  level  of  those 
iif  the  Hritisli  (jueen.  Another  section  in  the  same  hill  directed 
that  the  militia  then  oigani/.ed  in  the  excluded  States  should 
he  (lishunded,  and  that  no  further  militia  he  organized  in  them 
until  further  authorized  hy  Congress.'*'  The  President  signed  the 
hill,  March  2d,  1867,  but  sent  this  jirotest  in  a  message  to  the 
House:  — 

"  Those  provisions  are  contaiiu'd  in  the  second  section,  which  in  cer- 
tain casesi  virtually  deprives  the  I'resident  of  his  constitutional  func- 
tions as  ci)ininimiler-in-cliief  of  the  army,  niid  in  tiie  sixth  section, 
wL'ch  denies  to  ten  Stales  of  the  I'nion  their  constitutional  right  to 
protect  themselves,  in  any  emergency,  by  means  of  their  own  militia. 
These  provisions  are  out  of  place  in  an  appropriation  act.  I  am  com- 
jielled  to  defeat  those  necessary  appropriations  if  I  withhold  my  signa- 
ture from  the  act."  " 

At  the  same  time,  the  power  of  the  Executive  to  control  his 
.suhordinates  was  restrained  hy  the  Tenure  of  OtHce  hill,  which 
made  the  consent  of  the  Senate  necessary  to  the  removal  of  all 
(illieers  to  wdiose  appointment  their  consent  was  required,  except 
nicnihcrs  of  the  cabinet  iu  certain  cases.""  This  bill  was  vetoed 
hy  the  President  as  unconstitutional,  but  passed  again  over  his 
veto.  An  alleged  violation  of  it  was  the  main  ground  of  the  ar- 
ticles  of   impeachment    subsequently    presented    .against   him.''' 


»*  11  St.  nt  L.,  48(;,  4M7.  Roth  these 
Kcptioiis  were  siil)soini('iiUy  ropealod. 

»•■■  iMrPhcrsoii,  History  of  Uio  Rc- 
conslructiou,   ji.   17H.    The   constltu- 


tionnlity  of  this  act  will  bo  considered 
Hul)8eiiicoiitly. 

»8  14  St.  at  L.,  430. 

«'  Tlic  loMstitutionality  of  this  act 
will  be  eousidereU  subsequently. 


244 


ItECOXSTIMCTIoN. 


[niAl'.  II. 


Mt'iiinvliilo,  j)roc'(!i'(liiit,'s  liad  Iiccii  instituhMl  at  tliis  tiiiu'  to 
invostii(:it<'  the  cniKluct  of  tlii^  I'n'shlfiit  to  sco  if  lie  liad  imhii- 
iiiittcd  iuiy  iiiipeaclialjli'-  oflViise  ;  more,  liowcver,  willi  llic  olijcct 
l)y  the  iiiajiiiity  of  iiitimidiitinj,'  him  tliiin  witli  t  i  ■  iiiteiitiini  (if 
(111  net  Hid  iiiiiK'iu'liiiK'iit,''^  whii'li  wiis  not  scrhiiisly  coiitcinphittMl 
till  after  his  alteiinit  to  I'emove  Stanton  from  tiie  Depai'tmeiit  of 
War  in  the  following  summer.  'i"o  guard  again.st  the  danger  of 
his  tilling  the  Su]ireme  Court  with  men  who  construed  the  Consti- 
tution in  the  same  manner  as  his  advisers,  an  act  had  heen  jjassi'il 
in  the  iirevious  July  whieh  forhade  any  more  appointments  to  tiiiit 
bench  until  after  three  vaeaneies  had  oee\u're<l. '•''•' 

The  working  majorit}'  in  both  Houses  of  Congress  was  further 
stri'Ugthenetl  hy  the  adnussion  of  the  Stati?  of  N'  iraska,  over  :i 
veto,  February  8th,  18G7.'""  The  veto  of  tlie  bi"!  f.  ■  the  admis- 
sion of  Colorado  was  not  overridden.""  A  bill  granting  the  right 
of  suffrage  to  negroes  in  the  Disti'iet  of  Columbia  was  lik(^wise  ve- 
toed, and  then  passed  b^- the  re([uisito  two-thirds  of  each  llouse.^"'' 

In  ^bireh,  1)^(!7,  the  majority  hadsullieient  strength  to  pass  two 
reconstruction  acts  over  the  veto  of  tho  President,  who  <  lainicd 
that  they  were  uneonstitutional.  The  title  and  jireamblc  of  the 
first  was  :  — ■ 

"An  Act  to  provide  for  tlic  more  elllcient  governnioiit  of  tiie  rehol 
States.  Whereas  no  legal  State  governineiits  or  !vde(|iiatc  protcctii)ii 
for  life  or  property  now  exists  in  tlie  rehel  States  of  \'irgiiua,  North 
Carolina,  South  Carolina,  (ieorgia,  Mississippi,  Alaliaiiia,  Louisiana, 
Florida,  Texas,  and  Ariiausas;  and  wliereas  it  is  necessary  that  ]ioa(r 
iuul  good  order  should  be  enforced  in  said  States  until  loyal  luid  repuli- 
liean  State  governments  can  he  legally  estalilislied  :  Therefore,  Jl'-  ii 
eiKiiied,"  '-Tbat  said  rebel  States  shall  be  divided  into  military  dis- 
tricts and  made  subject  to  the  military  authority  of  the  I'uited  States, 
as  hereinafter  prescribed." 

The  President  was  instructed  to  assign  to  tlio  command  of  eaeii  dis- 
trict an  olllccr  of  tlie  army  not  below  the  rank  of  Brigadier-Geuenil, 


"*  Tlie  prorocilinpa  nre  briolly  ro- 
porti'd  ill  Mcl'lierson,  History  of  tlio 
KiMonstruction,  pp.  1H7-1'J0.  Tliey 
will  Ijo  roiisidcred  siibs(>qucutly  in  tlio 
chapter  on  Impeachment. 


"5  Act  of  .July  23,  18G0.  11  St.  iit 
L.,  p.  209. 

!'">  Act  of  Fol).  0,  1HC7. 

1"'  M(  rhorson,  History  of  tho  Ko- 
con.stniction,  p.  ICil. 

los  Act  of  Jan.  8,  18G7. 


§  •'■'<•] 


1!EC'(  iNSTlil'CTION    ACTS. 


:4" 


mill  to  (li'liiil  n  Huniciciit  iiiilitjiry  force  to  enable  liiin  lo  peifin'm  lii-i 
(Imii'M  ami  I'lifoicf  his  aiitiiority.  It  wua  the  duly  of  tlio  olliccr  to 
pusorve  order  mid  to  i)!!!]!."*!) 

•' nil  distuiln'is  of  the  ])iililic  pence  and  ci'lniinids,  and  to  thin  end  ho 
may  allow  local  civil  tiiliiinals  to  take  juiisilicttion  of  and  to  try  olTend- 
eis,  or,  wlu'ii  in  his  judjiiiient  it  may  lie  necesHary  for  the  trial  of 
otTendi'is,  lie  shall  have  power  to  organize  inilitaiy  commissions  or 
triliuniils  for  that  jiurpose;  and  all  iiiterfereiiee  niiiltr  color  of  State 
authority  with  the  exercise  of  military  authority  under  this  act  shall  bo 
null  and  void." 

'I'lie  ajiproval  by  the  ollicer  in  command  of  any  sentence  of  the 
iiiililary  Cdnunission  or  other  tribunal  alTcctint;  the  lite  or  lilierty  of  any 
InrsiMi,  was  recplired  before  its  execution,  and  the  ajiiiroval  of  the  I're- 
HJiliiit  was  re(iuired  before  the  execution  of  any  sentence  of  death.  It 
w:is  provided  :  — 

'■'I'lial  when  the  people  of  any  one  of  said  rdiel  Stat'.:;  shall  huve 
formed  a  constitution  of  iioveninient  in  conformity  with  tne  C'on.ititu- 
tioii  of  the  United  States  in  all  respects,  framed  by  a  convcPcion  of 
(Icleuales  elected  by  the  male  oiti/ens  of  said  State  twenty-'iiie  yeara 
(lid  and  upward,  of  whatever  race,  color,  or  previous  condition,  who 
have  been  resident  in  said  State  for  one  year  previous  to  the  day  of 
such  election,  except  such  as  may  be  disfranchised  for  participation  in 
tlio  rebellion  or  for  felony  nt  common  law,  and  when  such  ccmstitution 
Hliall  [irovide  that  the  elective  franchise  shall  be  enjoyed  by  all  such  per- 
sons as  have  the  qnalilicatious  herein  stated  for  electors  of  delegates, 
and  when  such  con.stifution  shall  be  ratili"d  by  a  majority  of  tlie  persons 
voling  on  the  question  of  ratiticatioii  who  are  (piidifled  as  eleetors  for 
delegates,  and  when  sneli  constitution  shall  have  been  submitted  to 
Congress  for  examination  and  approval,  and  Congress  shall  have  ap- 
proved the  same,  and  when  said  State,  by  a  vote  of  its  legislature 
elected  under  said  coustitntiou,  shall  have  adojited  the  amendment  to 
the  Constitution  of  the  I'nited  States,  projiosed  by  the  'riiirty-niutli 
Congress,  and  known  as  Article  Fourteen,  and  when  said  article  sludl 
have  become  a  part  of  the  Constitution  of  the  Inited  States,  said  State 
shall  be  declared  entitled  to  representation  in  Congress,  and  Senators 
and  Representatives  shall  be  admitted  therefi'oiii  on  their  taking  the 
oaths  prescribed  by  law,  and  then  and  thereafter  the  preceding  section.'^ 
(if  this  act  shall  be  inoperative  in  said  State:  Pnirinil,  That  no  per- 
Hm  excluded  from  the  privilege  of  holding  olliee  Viy  said  proiiosed 
nniendment  to  the  Constitution  of  the  I'nited  Slates  shall  be  eligible  to 
election  as  a  member  of  the  convention  to  frame  a  constitution  for  any 
of  said  rebel  States,  uor  shall  any  such  person  vote  for  members  of  such 


24(1 


n  iccoNSTnucTiox. 


[C'UAI'.  II. 


convention."  "  Tliat  until  the  people  of  said  rebel  States  shall  be  \<y 
law  admitted  to  representation  iu  the  Con,:^ress  of  the  United  States 
any  civil  governments  whieh  may  exist  therein  shall  be  deemed  pir- 
visioiial  only,  and  in  all  respects  subject  to  the  paramount  autlitr.iiy  of 
the  I'nited  States  at  any  time  to  abolish,  modify,  control,  or  superseilo 
the  same;  and  in  all  elections  toanj'oflico  under  such  provisional  ijov- 
ernnients  all  persons  shall  be  entitled  to  vote,  aiul  none  others,  who  are 
entitled  to  vote  under  the  provisions  of  the  fifth  s, ction  of  this  act; 
and  no  person  shall  be  eligible  to  any  ollloe  under  any  such  i)rovisional 
governments  who  would  be  disqualilied  from  holding  ollico  under  the 
provisions  of  the  third  article  of  s;;id  constitutional  amendmeut.""' 

Tlie  Fortieth  Congress  imniodiiitel}'  passed  over  Johnson's  veto 
a  siipplenientiiry  reuoiistructiou  act  witli  speeilio  provisions  for 
the  logistratioii  in  accordance  with  tlie  former  act  and  for  the  Ian- 
gu:>ge  of  a  test-oath  tlien  to  be  udniinistured.  'J'liis  act  further 
provided  tliat  the  State  conventions  shouhl  liave  the  power  to  pro- 
vide for  taxation  to  pay  their  expenses."^  A  second  supphMiient 
was  passed  over  tlie  President's  veto,  whicli  declared  that  it  liad 
been  the  true  intent  and  nieuiing  of  the  former  reconstruction 
acts  "that  the  governments  tlicii  existing  in  tlie  rebel  States  of 
Virginia,  North  Carolina,  South  Carolina,  Georgia,  Mississippi, 
Alabama,  Louisiana,  Florida,  Texas  and  Arkansas,  were  not  legal 
State  governments  ;  and  that  thereafter  said  governments,  if  con- 
tinued, were  to  be  continued  subject  in  all  '.espects  to  the  niilitarv 
coniiuaiiders  of  the  respective  districts,  and  to  the  paraiuouiit 
authority  of  (  )ngress."  Power  was  given  to  each  district  com- 
mander, subject  to  the  disa[)proval  of  the  general  of  the  army, 
to  remove  any  ollicer  or  person  holding  any  civil  or  inilitaiy 
ollice  ill  such  district  under  any  power  granted  by  any  so-called 
State  or  municipal  goveriinient.  The  acts  of  ol'licers  of  the  army 
i:i  2'i'^-'viously  removing  such  oHicers  were  conlirmcd.  It  was 
niailc  the  duty  of  the  district  coiiiniauders  to  remove  from  ollice 
all  j)crs()ns  disloyal  to  the  goverunicnt  if  the  United  States,  or 
\\lio  iisod  their  ollicial  iiiHueiuie  in  any  manner  to  hinder,  delay. 
jirevent  or  obstruct  the  due  and  proper  administration  of  llie 
reconstruction  acts;  aiui  liiuiUy  it  directed  that  "No  (bstrict  c(iiii- 
niaiider  or  member  of  tlu;   IJoard  of   I?egistratioii,  or  any  of  llio 


'"1  Act  of  March  2,  18«7,  11  St.  at 
I-,  428. 


iK  Act  of  Marcli  23,  IfiCT,  15  St.  at 
L.,  2. 


!;  :;S.] 


ItECONSTUTTCTIOX   ACTS. 


241 


olliicrs  o'-  appointees  acting  under  tlieni,  sliall  be  lionncl  in  his 
iutjiiii  liv  the  opinion  of  any  eivil  oflicer  of  the  United  States."  '"■"' 

'I'liis  last  provision  vas  intended  to  weaken  the  authority  of 
the  Attorney-! ieneral,  A/ho,  in  his  previous  opinions,""'  had  criti- 
cized the  aetion  of  some  of  tlie  district  eoniiian<lei's  and  had  lim- 
ited tlie  construction  of  tlie  acts  in  favor  of  constitutional  rights 
lUid  civil  lihei'fy.  In  -lolmson's  veto  lie  argue(i  that  tiiis  forbade 
tlii'iii  to  even  follow  a  judicial  decision  when  ii:  conflict  with  a 
militarv  order.  '•  These  niilitar}-  appointees  would  not  be  bound 
cvi'U  by  a  judicial  opinion.  They  might  ver}-  well  say,  I'ven  when 
their  action  is  in  conllict  with  the  Supreme  Court  of  the  United 
States,  'that  court  is  composed  of  civil  oilicers  of  the  United 
Stales,  and  we  are  not  bound  to  conform  our  action  to  any  opinion 
of  any  such  authority.""'"'  By  these  acts  the  late  Confederate 
Stales,  wi*h  tlie  exccptiou  of  Tennessee,  were  not  only  excluded 
freiii  ivpresentation  in  Congress,  but  absolutely  denied  civil  gov- 
enimeut  and  placed  under  military  rule  of  the  most  despotic 
(■iiiiractcr  until  they  had,  in  addition  to  the  ratilication  of  the 
i'diirtc'cnth  Anieiidment,  extended  the  right  of  siiiTrage  to  the 
ciihircd  race;  and  the  army  was  used  to  compel  immediate  action 
t(i  that  effect.  After  their  enactment  over  his  veto,  .lohnson 
executed  the  statutes  with  tideiity,  although  he  believed  tha*. 
tli(y  were  iniconstitutional.  Under  them  the  Southern  States 
Were  treated  as  coiupiered  provinces,  and  twelve  millions  of 
]ii'(iplc  were  ruled  In  military  satraps,  who  interfered  with  and 
overruled  in  the  most  arbitrary  niannei-  the  acts  of  the  State 
executives,  k'gislatnres  and  jiidii'iaiy,  as  v.  ell  lus  of  those  who 
h;id  forincrly  exei'eised  the  right  of  suffrage  thei'c. 

Stuff     governors.""'     State    judges.'""     a     State     attorncn'-gen- 


i"'  ir,  SI.  n:  L.,  II. 

l"'  I'J  Op.  A.  (!.,  ISC,  VM;  (|11iiI(mI 
iiifni.  null'  11'2. 

"' .lolinsDii's  vi'ld  ol'  llii'  Si'i'iiiid 
Siipiiji-iiii'iit  lo  llu'  Ki'ccuistr'.i'tldii 
Xr[.  July  11),  ISCu. 

""Ill  llissi.-i.'iippi,  .luuc  ir)tli,  ISilS 
iD.'ivis.  Iti.si.  and  Full  ol'lln'  Cuiil'ivlfi-- 
nil'  (inviTMinriit,  viil.  Ii,  p.  7'>i).  Ill 
Vii-nliiiii,  Miircli,  27,  lsi;i)  (Mrrin'i-sini, 
IIisl<iiy  of  tlic  UecoiiBlluclioii,  p.  I'Juj. 


Ill  Liiiiisiiiii;i,  .Tiino  :),  ISi'"  (Davis, 
liisc  mill  F.-ill  of  till'  Coiifi'diTiilc  (tov- 
cniririit,  vol.  11,  p.  I^ti't).  Ill  Ti'xns, 
July  ;((t,  lsi;7  (Mi'lMiorHon,  History  of 
tlid  lli'(  oiiHtruclioii,  p.  Ili't). 

>"'■'  III  South  riii'olliiii.  In  Si'pti'nilKM-, 
lH(i7  (Davl.-*,  Uisd  mill  Fall  of  tlm  Con- 
frdcriili'  fioM'rninriil,  vol.  II,  p.  714). 
In  Lnuisiiiiui.  MiiiTli  ■J7,  IHCJ  iXIrriior- 
son.  Hi.^lory  of  till'  Hi'coiislrui-lloii.  p. 
20(!).     Ib   Virglula  ulso,    (Cnx,   Thraa 


248 


RECONSTKUCTION. 


[chap. 


cnil""  and  a  State  ti'disurer,"'  as  well  as  local  officers  of  uvcrv 
(li!.suriptiun,  were  removed,  and  in  many  cases  soldiers  detailed  to 
diseliarge  their  duties,  to  administer  the  laws  of  the  State,  to  dctiT- 
niinc  controversies  affecting  liberty  and  proj.'erty  without  any  qiiali- 
lications  from  previous  study  or  experience  in  tlieir  systems  df 
juris[)rudence,  and  to  collect  and  disburec  the  taxes  and  otLcT 
revenues  of  the  State  without  filing  any  hond."^      I^egislaliues 


Decades  of  Fi'deral  Logislatlon,  p. 
489). 

1"  In  Loiiisiaiiii,  ilnrch,  27,  1807 
(MclMiciHoii,  llisUiry  of  the  Ro<-ou- 
stnii'tioii,  I).  'iOG). 

"1  AUonii'y-di'ncral  SlaiiliiTy,  12 
Op.  A.  G.,  1!U.  Davis.  His,,  and  Fall  of 
tho  Coiifodciato  (tovi'riiiiicnt,  vol.  ii, 
!>.  7.")'J. 

"-"In  oiiK  of  llu'so  districts,  tin' 
Rovornor  of  u  Slalo  has  bocii  di'posiul 
under  a  threat  of  military  force,  and 
another  por.son.  called  a  ijovornor,  has 
been  appointed  l)y  a  military  com- 
mander to  1111  Ills  place.  Thus  i)re- 
sentiiig  the  straufic  spectacle  of  an 
official  intrii.sted  with  the  chief  power 
to  execute  the  laws  (jf  the  Slate  whoso 
authority  is  not  rccof^nizcil  by  tho 
laws  he  is  called  upon  to  execute. 

"  111  the  same  district,  the  judne  of 
one  of  the  crlniinal  courts  of  t  he  State 
has  bei'n  isummarily  dealt  with.  lu 
tills  instance,  the  judge  has,  by  mili- 
tary order,  been  eje<!t(!d  from  his  olTlce, 
and  a  private  citizen  has  been  ap- 
pointed jmlge  in  his  place  by  military 
authority,  anil  Is  now  In  the  exi'r- 
cise  of  criniiiial  jurisdiction  'overall 
crimes,  niisdi'nii'anors  and  olTe'ice.s' 
C(Huiiiitted  within  the  terrlloriiil  juris- 
diction of  the  court.  Tliis  mililary 
appoiiilc(>  is  cerlainly  not  aulliori/.ed 
to  try  any  one  for  any  olTciico  as  a 
nieniher  of  a  military  trilmnal,  and  he 
has  just  as  little  authority  to  try  and 
jiunish  any  olTcnder  as  a  judge  of  a 
criminal  court  of  the  Stale.  It  hap- 
pens that   this   private  cllizci.,  tlius 


placed  on  tho  bench,  is  to  sit  as  the 
solo  judge  in  a  criminal  court  who.-^e 
jurisdiction  extends  to  cases  involviiij; 
the  life  of  the  accused. 

"If  he  has  any  judicial  jiowit  iu 
any  case,  ho  has  the  same  power  to 
take  cognizance  of  capital  casi's, 
and  to  si'nteiice  tho  accused  to  de.itli. 
iiad  order  his  exc>cution.  A  straii.u'c 
spectacle,  when  tho  judge  and  iIid 
criminal  may  very  well  'change 
places';  for  if  the  crindnal  has  un- 
lawfully taken  life,  so  too  does  the 
judge.  This  is  the  inevitable  result.  I'.ir 
the  only  tribunal,  tho  only  judges,  ir 
they  can  bo  called  judges,  which  a 
military  comniamlcr  can  constiliilo 
and  appoint  undi'r  (Ids  act,  to  iiilliii 
thcideath  penalty,  is  a  military  court 
coniposi'd  of  a  board,  and  calleil  in 
the  ai't  'a  mililary  cominiBslon.' 

"  I  see  no  relief  fiu'  tlio  condoinued 
against  tho  soutenco  of  this  agent  o; 
tho  military  commamh-r.  It  i-;  not 
tlio  sort  of  court  whoso  sentence  of 
death  must  be  first  api)roved  by  the 
comniamlcr  and  llnally  by  tho  Ticsi- 
deut,  for  that  Is  allowed  only  wlier.' 
the  sentence  is  pronounced  by  a  '  mili- 
tary commission.'  Nor  is  it  a  m'h- 
tenco  pronounced  by  tho  rigliU'ul 
court  of  a  State,  but  by  a  court  and  hy 
a  judge  not  clothed  with  authority 
under  the  laws  of  the  Slate,  but  con- 
stilulcd  by  the  military  authority. 
As  the  represeiilatlvo  of  this  mililaiy 
authority,  this  act  forbids  Interference, 
•  under  color  of  State  aulhorlty,'  with 
th(^  exerci.so  of  his  fuuclious."  (12  Up. 


§38.] 


MILITAUy    GOVEUNJIENT   OF    THE   SOUTH. 


249 


wiiv  forbidileii  to  meet.'"'  The  people  were,  in  .some  cases,  I'or- 
liuli'k'ii  to  elect  local  ollicers,'"  or  even  to  go  through  tlie  form 
of  cli()i)Niii;4'  presidential  electors;"''  and  voters  <jualilied  l)v  the 
State  conwtitutions  were  disfranchised  by  an  ex  post  facto  law 
u|i(iii  charges  of  treason  of  whicli  they  had  never  been  convicted. 
Taxat'on,  national  and  local,'"'  without  representation,  was  im- 
posed uiion  them.  A  tribute  was  tiius  levied  Ity  tlie  imposition 
of  a  cotton-tax,  whicli  affected  no  property  outside  of  the  dis- 
fiaiicliised  States,  and  escaped  anindment  by  a  tie  vote  of  the 
Suj)rcuie  Court. "'  Taxes  imposed  by  State  legislatures  were 
reduced  or  set  aside."*  Public  meetings  were  suppressed.'"'  The 
riglit  (if  the  people  to  bear  arms  was  infringed  by  the  act  of  Con- 
gress disbanding  the  State  militia'-"  and  tlie  orders  of  generals 
addressed  to  private  citizens.'-'  ^leanwhile,  when  it  suited  the 
pleasure  of  the  district  connnanders.  State  ollieers  were  obliged 
to  coiitiuue  to  discharge  their  functions  even  after  tlie  expiiation 
of  tiuir  terms. '^    Judges  wlio  had  lieeu  sworn  to  administer  tlie 


A.  (I.,  pp.  l',);)-l!)4.  Si'r>  nlHO  ibid.,  pp. 
lhC-ls7. 1  On  March  2',ltli,  IKOil,  (loupral 
Smui'iniiii  i'o|ioili'il :  tliat  out  of  5,4411 
ollii'i's  ill  Vii^;inia  JUll  of  tlie  iiu'uni- 
bonts  wore  alilc  to  tulco  tho  tesl-oalh, 
1111(1  ciiiisoijuoiiUy  woro  undisturbed; 
.");I2  li;id  licou  lilled  liy  his  predecessor, 
and  l.'.i72  liy  liiiiiBelt':  and  tliat  2,tii;l 
rcinaincd,  tlio  iiuMiiiibcnIs  of  wliicli 
nc'r«>iliw|iialilicd  liyCoii^;ress,  and  that 
111)  wart  unable  to  llud  elij.;ildu  men 
wlio  were  Pdinpi'teiit  to  dis(diiii't,'e 
tlicir  duties.  ( lIcriicrsDii,  History 
of  Ih"  UecorLstruction,  p.  M~>.) 

"■See  Davis,  KIso  and  Fall  of  tlio 
Oml'edcmte  (iovernnient,  vid.  ii,  pii. 
74'i,  757 ;  Mcl'lieisoii,  History  of  the 
UiMoiistruelion,  p.  ;12.5. 

"*  Mel'herson,  History  of  (lie  R(?- 
construetiou,  pji.  2118,  428. 

"^  In  Texas,  Sept.  21),  1RG8,  iliid.,  p. 
429. 

"'("ox,  Three  Decades  of  Federal 
Li';,'i;.laliiin,  p.  .'i.'id. 

""  The  Act  of  March  7,  IHiU  ^i:\  St. 
(it  L.,  t4i,llrKl  impo.scd  ii  tax  of  two 
cents   u   pound    ou    uiimuuiil'aclured 


eolton.  This  was  continued  by  the 
act  of  June  ;iO,  IHftl  ibi.I.,  p.  22:)); 
Incceasod  to  three  cents  a  pound  by 
the  act  of  July  l;i,  ISC.O  (14  Si.  at  L.. 
98);  rodueed  to  two  and  a  half  cents 
a  pound  by  the  act  of  March  2,  18fi7 
(il)id.,  |).  169);  and  repimled  by  the 
act  of  Feb.  3,  1808  (1.")  St.  at  L.,  34). 
Tlie  con.stltutionallty  of  the  tax  was 
alUinied  by  a  divided  court  Fel>.  20. 
1871,  in  the  unrepoi'led  case  of  Far- 
iniii);lon  r.  S.iunders,  niter  two  arjjii- 
lucnts,  (he  lli'^t  ill  Decemliei',  lsi',',1,  in 
wliicli  it sopiiiuicnls claimed  that  it  wnn 
a  direct  tax  and  a  tax  upon  iwporls. 

11!^  lIclMicrson,  History  of  the  Ke- 
construciion,  (i.  420. 

"■■'  Mcl'herson,  History  of  the  Ke- 
construclion,  p.  429;  Davis,  Hise  and 
Fill!  of  (he  Ouifederate  (Toveinrnent, 
vol.  ii,  pp.  7;i:l. 

'i'  Act  of  March  2,  18(17.  14  S(.  at 
L.,  4h7;  Hiipra,  over  nod'  9,5. 

'-1  Mcl'lieison,  History  of  tlie  Ke- 
coiisiniclioii,  pp.  204,  31(1. 

'-■-  Mid'hiM-Hon,  History  of  tlie  Ro- 
eonstriiction,  [ip.  20(j,  208,  428. 


•2r>o 


15KCOXSTRUCTION. 


[<'11AI'.  U. 


liws  of  til  'ir  Stiitt'S  -were  directed  to  violate  tliem;^^  to  ciiipanel 
jui'irs  out  of  a  iImss  dis(iualiiied  !)}•  tlieir  State  statutes;'-'  to  taki' 
testiiiioiiy  wliicli  was  l)y  statute  made  in(!ompetcnl  ;  and  to  dciiv 
ri'uuMlics  to  wliieli  suitors  were  entitled  by  law ;  and  in  some  cases 
tliey  were  imprisoned  for  their  refusal. ''■''''  Punishments  prest  iil)eil 
hy  tlie  State  statutes  Avere  forbidden.'^  A  new  code  of  jienid  law- 
was  in  SOUK'  cases  set  up  by  the  will  of  the  general.'-'^  Permission 
to  ](ardou.  as  provided  by  the  State  constitutions,  was  in  sonic 
c;iscs  triven  to  tiie  State  governors,  and  in  others  withheld.'-''  .Viid 
many  persons,  in  violation  of  the  constitution,'-'  Avere  tried  iiiioii 
( liininal  charges  liefon;  military  commissions  and  ini[)risoned  uinlci 
siiiteiices  thus  illegally  imposed.  In  one  case  a  civilian  was  scii- 
tcMceil  to  death  by  such  a  commission,  althougli  he  was  ,it  tlif 
time  under  indictment  liy  the  State  court  for  the  same  oiVcnccs; 
and  the  j\ttoruey-(ieneral  adviscid  the  President  to  approve  tlir 
sentence;  liut  the  execution  was  prevented  by  an  escape,'-'"  wliitli 
it  may  be  hoped  was  collusive. 

'J'iie  interference  of  the  military  with  the  civil  government  was 
not  confined  to  the  maintenance  of  lu-der,  the  elevation  of  tin' 
colon.'d  i-ace.  and  the  jiromotiou  of  the  policy  of  ("ongress.  'i'lir 
admiiiistraticui  of  justice  I'elating  to  private  rights  between  jiri- 
vate  citizens  was  arbitrai'ily  controlled.  l'',xecutions  and  jmlii-ial 
sales  were  stayed.'''"'  i'Jxeiiiplions  from  attachments,  arrests,  aiid 
executions,  uidcnown  to  the  State  laws,  were  ordered.'-''-^     Decrees 


1-1  Si'o  Davis,  Itisi'  arwl  I'all  of  the 
Coiil'i'doriUc  Oovoi'nmcul,  vol.  ii,  j). 
7;):i. 

'•^<  Pavis,  Kisi"  and  Fall  of  tlio  Cou- 
fi'ilcratc  (iovcriiiiKMit,  vol.  ii,  |).  744; 
Oliinioii  of  Henry  Staiihory,  12  Op. 
A.  (',,,  IMl,  ls7. 

>--■■'  JIclMu'i-soii,  History  of  llic  Itc- 
coustniclioii,  I'p.  '21)2  2ai. 

i^i  Mi'1'liiM-son.  Hisloiy  of  the  Ho- 
conslnii  lion,  p.  2ai.  .Iiislilicatioii  for 
nuiny  of  lln'sc  ads  was  soiinlit  uiulcr 
tho  Civil  Uifflits  Hill,  wliich  had  not 
tlion  licoa  (liiclai'<Ml  unc<iimt  iliitional. 

'-■  Ibid. 

1-*  Ihid. 

i-"-!  E.x-parU'Milligaii,  4Wall.,;i.    For 


an  opinion  of  Altonii>y  ficnoral  Iloiir, 
siislaininn  siicii  a  jinictici'.  See  i;i()p. 
\.  (1.,  ."i!l;  Mid'licr.sou,  IliHtory  oi  Ihi' 
Itcconsl  ruclioii,  ]i.  47."). 

i-i'i  Sen  Wriivcrs  Case,  111  Op.  A.  (i., 
.'ill;  Mc'I'licM-son,  llistoryof  llii' Kci'iin- 
.siriK'lion,  p.  475.  M.S.  li'Ucr  by  E. 
K.  Hoar  to  llio  writer,  Oct.  1,  IS'.tl. 

'"  Such  orders  in  Soiitli  Cai-olina 
were  jnstilled  under  au  act;  of  tin' 
Stale  Lenislatill-e,  wlilcll  was  afler- 
wards  ln'ld  nneouslltulional  liStati' 
V.  C.irew,  Itieh.  S.  C.  i:!  Law.  12  E(|. 
•^77t. 

1'- Oi-di'P  of  C.eneral  Sii-Ub's  in 
North  iind  Soutii  Carolinu,  .\piil  H. 
1HC7.     McPliurson,  lUslory  ot  tlie  lie- 


^;X] 


MIMTAIIV    COVKltN.MKNT    OF    THE    SOITK. 


2r>i 


(if  State  courts  in  suits  affecting  rights  of  property  were  setiii-ide,'*' 
ii:i(l  ill  one  case  the  Federal  army  resisted  the  enforcement  of  tlie 
iK'crco  of  a  Federal  court. "^ 

111  marked  contrast  witli  tliis  conduct  of  other  district  command- 
ers was  tliat  of  General  Winlield  Scott  Hancock,  whom,  on  August 
liilih,  18(17,  Johnson  detailed  to  the  command  of  Louisiana  and 
Trxiis.  in  the  i)hice  of  (iciicral  Pliilip  TI.  Shcri(hiii.  His  lirst  step 
«;!•;  the  promulgation,  on  Novcnihcr  21ttli,  lS(i7,  of  liis  famous  Gen- 
eral Order  No.  4l),  whicli  is  replete  with  the  doctrines  essential  to 
eniistitutioinil  lihcrty :  — 

••  Tlie  (■I'lu'ral  C'oiiiniaiuliiig  is  gratified  to  loarn  that  peace  and  (piiet 
niu'ii  la  tliis  I)e|)artiiiciil.  It  will  be  his  purpose  to  |)rescrve  this  con- 
(liiiiiii  of  things.  As  a  means  to  this  groat  cud,  lie  regards  the  niainte- 
]i:uiee  of  the  civil  authorities  in  the  faithful  execution  of  lliu  laws  as 
llie  most  ellicient  uiuler  exisling  cireuiiistances.  In  war,  it  is  indis- 
pi'iisiilile  to  repel  force  by  force,  and  overthrow  and  destroy  opposition 
to  lawful  authority.  Hut  when  insurrectionary  force  liaa  been  over- 
tliiown  anil  jieace  established,  and  the  civil  authorities  are  ready  and 
willing  to  perfori"  their  duties,  the  inilitaiy  power  should  cease  to  lead, 
and  the  civil  administration  resunie  its  natural  and  rightful  dominion. 
.Siileiniily  impressed  with  these  views,  the  General  announces  that  the 
f^rcat  principles  of  American  liberty  are  slill  the  lawful  inheritance  of 
the  people,  and  ever  should  be.  The  right  of  trial  by  jury,  the  habeas 
corpus,  the  liberty  of  the  press,  the  freedom  of  speech,  the  natural 
riglils  of  persons,  and  the  rights  of  property,  must  be  preserved. 

"  I'rce  institutions,  while  they  arc  essential  to  the  prosperity  and 
happiuess  of  (he  people,  always  furnish  the  strongest  inducements  to 
peace  and  order.  Crimes  and  offences  coiiiniitted  in  this  district  must 
lie  referred  to  the  consideration  and  judgment  of  the  regular  civil  tri- 
liiiiials,  and  those  tribunals  will  be  supported  in  their  lawful  juris- 
(lietioil. 


iiiiistriietion,  p]i.  202  201.  Soo  iilso 
lli"onlcr  ill  Virginia,  Mareli  12,  ISdS, 
iiiiil.  p.  1117. 

'■•'  Diivis,  IiiHi>  iiiid  Fall  of  tlio  Om- 
federalo  Gi)Voriiment,  vol.  ii,  p.  7U9, 
"i:i  Tit.  Tlieso  proeei>iUng8  woro 
lii'lil  by  the  Supreiue  Court  to  be  void 
liiiviw^e  not,  Hiillioi'ized  liy  tlie  Iteeou- 
^tnifiion  Aets,  Eaymoud  r.  Tlinmas, 
ill  V.  8.  712. 


"<Thls  netion  in  Xorlli  Carolina 
was  disapproved  lit.  Wii.sliiiijjton,  and 
lo'ld  by  the  Aetiii)^  Ailoniey-deneral 
John  M.  Bliiokley,  to  lio  "simply  a 
casn  of  hitjli  iiiisdomeanor,  leji.ally 
eoiiloinplaled."  llavis,  KIse  mill  Full 
of  th('  Confederate  (iovernnient,  vol. 
ii,  p.  71111;  Applelon's  Annual  Eneyclo- 
pii'iliii  for  1HI17,  p.  548. 


KECOXSTKUCTIOX. 


[(■MAP.  11. 


"  Should  tlu'i'o  be  viohitions  of  oxistiii^  liuvs  wliicli  are  not  iiif|iiiml 
into  by  the  civil  iniijiistrales,  or  should  failure  in  tlie  adniinislrutidii  of 
justice  by  tlie  eourt.s  be  complained  of,  tlie  cases  will  be  repoilcd  to 
tlicse  lieail((uarters,  wiien  such  orders  will  be  made  as  may  be  doeiiud 
necessary.  AVIiile  the  (ieneral  tluis  indicates  iiis  purpose  to  respect  the 
liberties  of  the  people,  he  wishes  all  to  understand  that  armed  insurrec- 
tion or  forcible  resistance  to  the  law  will  be  instantly  suppressed  by 
arms." 

Tills  was  followoil  by  ii  series  of  .special  orders  in  wliieli  lie 
forbade  iiitei'feiviice  by  the  niilitiuy  at  the  polls,  (lisclainu'il  judiciiil 
functions  in  civil  cases  and  .sustiiiiied  the  jurisdiction  of  the  civil 
eonrts  over  the  ri^i'lds  of  private  projierty  and  tlie  trial  n(  olTciiscs 
against  the  State  laws. '•'■''  The  day  after  Prcsi(h'iit  (iraiil's  iii- 
augnration  lie  removed  Hancock  from  tliis  coiiiinaiid  and  sent 
Sheridan  liack  to  follow  the  practice  of  tlie  other  district  c(iiii- 
manders.''''' 

Thus,  under  tlu;  intimidation  of  armed  force  at  the  polls,  State 
conventions  were  elected  by  the  ignorant  blacks  and  by  timsc  of 
the  white  race  who  were  least  trained  in  ])nblic  affairs  and  liad 
little  interest  in  the  i<i'otection  of  private  property  and  tlie  niiiiii- 
tenance  of  order.  These  organized  under  the  control  of  the  iiniiy. 
which  in  some  eases  was  obliged  to  interfere  and  kei'p  order  in 
their  proceedings,'"^  prejiarcd  new  State  eonstitution.s  in  acconl- 
iineo  with  the  commands  of  tlie  dominant  party  at  Washington,  am! 
ratitied  the  I'^mrteenth  Amendment  to  the  Federal  Constitution. 
On  June  -I'ld,  lS(i8,  tlie  State  of  Arkaii.sas  was  admitted  to  rcpre- 
sentatioii  hi  Ciuigress  by  a  bill  j)assed  over  the  {'resident's  veto, 
■which  V,  as  liased  iqioii  olijeetioiis  to  tlie  unconstitutional  priiui|)le 
tliercin  recognized,  and  also  to  the  necessity  of  legislation  upon 
a  suliject  wiiich  eacli  House  (d'  Congress  had  the  power  to  drler- 
miiu-  for  itself.  Tiie  recitals  said  that  tlie  people  of  the  Slate 
in  pursuance  of  the  I'cconstruction  acts,  had  "  formed  and  a(lo|iteil 


i;i6  Gcnpral  Order,  No.  40,  luiil  IIuii- 
OOili's  letter  ill  ilefeMci"  of  it  U)  Govei- 
iiiii-  re;iHO  of  Texas,  wliich  is  ii  iiiastcr- 
pli-co  of  dittnidcil  uiid  ("nisliiiij,'  arj^ii- 
iiii'iit,  are  ri'piiblislicil  in  lAirnoy's 
Lire  of  Itaiicoik,  p|i.  2.Ti  2U',.  So(> 
liUu   Mcriier.soii,  Ilisloi-y  of  tlio  llo- 


conBtruotion,  p.  321.  Tiny  iiiv  p;iI(I 
to  have  bion  written  liy  Ji'iv.  S. 
Ula.'li. 

I'WBlaiiK-,  Twi'Mly  Years  in  O'li- 
yrcss,  vol.  ili.  p.  'I'M. 

11"  D.ivis,  liis(^  ami  Fall  of  IIh'  (''>ii- 
fedenilo  (JovcniineiU,  vol.  11,  p.  71'J. 


ii;>,s.] 


REIIAHILITATION    OV    Si:\'r.X    STATES. 


20.3 


a  Ciinstitutinn  of  Stato  government,  wliieli  is  republieaii,"  and 
tliiit  iis  U'<rislature  had  duly  ratified  the  Fourteenth  .Vniendniont. 

II  iht  II  ciiai'ted,  in  terms  similar  to  tlrose  in  the  statutes  admitting 
new  Slates:  — 

••  rii:it  lliu  State  of  Arkansas  is  entitled  and  adniitti'd  to  representa- 
tion ill  ('on<:reH»,  as  one  of  the  States  of  tiie  Union,  upon  the  following 
I'lindtuiiciitMl  eoiidition  :  Tiiat  the  Constitution  of  Arkansas  shall  never 
lie  .'io  iiiiieiuled  or  changed  as  to  deprive  any  eitizen  or  class  of 
cilizciis  of  the  United  States  of  the  right  to  vote  wlio  are  entitled  to 
vdto  \<y  the  Constitution  herein  recognized,  except  as  a  piinisliineiit  for 
piiili  crimes  as  are  now  felonies  at  eomnion  law,  whereof  tliey  chall  have 

III  I'll  (inly  convicted,  under  laws  equally  applicable  to  all  the  iiiliabi- 
tiiiits  (if  said  State ;  Provided,  That  any  alteratioi-.  of  said  Constitution 
jiidsiicclive  in  its  effect  may  be  made  in  regard  to  the  time  and  place  of 
ivsidciice  of  voters."  "' 

On  .lune  2')th,  18l)8,  an  act,  sidistantially  sinular  to  that  for  Ar- 
kiiiisus,  admitted  to  representation  in  Congress  the  States  of  North 
Ciiidlina,  Soutli  CJarolina,  Louisiana,  Georgia,  Alabama  and  Flor- 
ida. This  provided  that  it  shouhl  only  take  effect  as  to  each 
State  upon  the  ratifiitation  of  the  Fourteenth  Amendment  by  its 
IcH'islature.  'i'he  admission  of  Georgia  to  re[iresentati(Ui  was 
fiirtiicr  conditioned  upon  the  annullment  of  certain  provisions  in 
tile  State  constitution  which  impaired  the  obligation  of  contracts, 
and  tin;  assent  by  the  legislature  to  such  condition.'**  The  States 
alTcctcil  by  these  acts  proiuptly  ratified  the  amendiuent.'^"  On 
.bily  :21st,  1(S(!8.  a  joint  resolution  was  [lassed  by  Congress,  declar- 
m/,  that  the  amendment  had  been  ratified,  and  was  a  jart  of  the 
('(institution  of  the  United  States.'"  On  July  2Sth,  jnilitary  rule 
was  witlidrawu  from  all  the  States  except  Virginia,  jNIississijipi 
and  Texas. "^  Delegations  from  all  who  had  thus  ratified  the 
I'diirifenlh  .\inemlmeut.  were  proiuptly  admitted  to  Congress. 

On  .Inly  :20th.  Congress  passed,  over  the  veto  of  President  John- 


'■'*  l"!  St.  Ill;  L.,  J).  72. 

'■'"in  SI.  at  L.,  p.  73. 

'*"  I'lnrida  hiid  no  nctod,  Jiiuo  9, 
W,x,  licfdrc  tlio  imssn^n  of  tlio  bill. 
N'mlli  raioliiiii  ivitilicd,  July  1,  Louisi- 
aiiii  nnd  South  Carolina,  July  0,  Ala- 
biinia,    July    l:),    Georgia,    July    21 


(Mt'Phorsou,  History  of  tlio  Eoiou- 
stnictioii,  jip.  ;i.">;t,  428,  429). 

»i  Iliid.,  p.  380. 

'"  (triiiit's  rKMiornl  Order  of  tlint 
dale  (Mi'PliprHon,  History  of  the  Ito- 
coustruotion,  p.  422). 


2M 


IMCCONSTKUCTIOX. 


[(■MAP.  :[. 


sen,  a  joint  resolution,  wliicli  duuliirud  "  tlr.it  noiiu  of  tin;  St  it, 
wlioso  inlialiitiints  wore  liitely  in  rolxdlion  shall  ht-  I'litilk'd  to  r,;  i- 
resentiition  in  tlie  electoral  college  "  until  after  eouiplianec  witli 
the  Keeonstruetion  legislation."'' 

Tiie  platform  U[)on  which  Grant  was  elected  President  con- 
tained tlie  plank :  — 

"  Tlio  {fiiaranty  hy  Congress  of  cqmvl  siiffrngc  to  nil  loyal  men  at  the 
South  was  (U'inaniU'd  l)y  every  consitloration  of  public  safety,  of  gnui- 
tude,  and  of  justice,  and  must  be  maintained;  wiiilo  tiie  (luostioii  of 
sutTrage  iu  ail  the  loyal  States  properly  belongs  to  tlic  [jeoplo  of  tliuse 
States."  '■'■' 

But  ]{epuhlicans  a.s  well  as  Democrats  had  protested  against  the 
injustice  of  forcing  upon  tiie  South  a  rule  which  the  Nortii 
was  unwilling  to  aeceijt."'''  'J'hc  blacks  above  Mason  an<l  Dixon's 
line  were  too  few  to  be  able  to  out-vote  the  rest.  ICxiieriencu  lias 
proved  that  the  education  of  one  or  more  generations  of  freednuu 
liad  fitted  them  to  exercise  the  right  of  suffragi;  wliicii  some  States 
liad  previously  extend(Ml  to  them.  At  tlie  session  of  Congress  im- 
mediately after  the  presidential  election,  the  Fifteenth  Amendment 
was  introducted.  On  February  2")th,  18(50,  it  was  sent  to  the  State 
legislatures  for  consideration  in  its  final  form:  — 

"The  riglit  of  citizens  of  the  United  States  to  vote  siiall  not  lie 
denied  or  abridged  l)y  the  United  States  or  by  any  State  on  acconntof 
race,  color,  or  previous  condition  of  servitude.  The  Congress  shall 
have  power  to  eiifore  this  article  by  appropriate  legislation." 

Tiie  ratification  of  this  amendment  was  now  made  an  additional 
condition  to  tlie  ndialiilitation  of  \'irginia,  Mississippi  and  Texas."" 
The  task  was  not  too  l)urdcnsomc,  since  they  thus  heliicd  to  fasten 
upon  the  otlier  States  that  whicli  Congress  had  previously  <'oni- 
pelled  them  to  assume  themselves.  Upon  compliance  witli  tliis 
and  the  provisions  of  the  jirevions  reconstruction  acts,  they  were 
admitted  to  representation,  Virginia,  on  .buiuaiy  28tli,i''  Missis- 
sippi, February  23d,"'*  and  Texas,  Marcli  30tli,  187U."''     JCarli  ui 

•"  McPlicrson,  History  (it  tlio  Eo-  »"  A.-t  of  April  10,  18G9;  10  SI.  at 

conslrui'lioii,  ji.  I!7S.  L.,  \>.  •10. 

m  llopubliwm    Natioiuil   Platform,  "' 1(1  SI.  iit  L.,  p.  C3. 

adopt 0(1  nt  Chiongo,  in  Ma.v,  18(;8.  "s  10  St.  at  U,  p.  07. 

""Blaine,   Twenty  Voars  lu  C!on-  ""  10  St.  at  L.,  p.  80. 

grt'BS,  vol.  li,  p.  •112. 


^  ■]■'.]      Ki:ilAI!ll,lT.\Tl<)N  (IK  VIUdlNlA,  MlSSlSSU'l'I,  TiCXAS.      'Ihit 

till'  lit  Is  cniu'cniiiit;-  lln'sc  Stiites  statwl  in  its  preaiuble  that  tlio 
iii:(i|il('  hail  Iriiiiifd  ami  adojited  a  Constitution  of  State  govorn- 
iiiiiil  which  was  ivpublii;an,  and  the  legishituie  had  ratihed  tho 
twci  new  auienihiK.'nls,  and  that  "tlie  performance  of  these  several 
iictti  ill  f,''0()d  faitii  is,"  in  tiio  case  of  Virginia  "was,"'""  a  con- 
(liiiiiu  prci'cih'iit  to  the  representation  of  the  State  in  Congress." '''i 
'Jill'  hody  of  eiuh  aet  stilted  that  the  admission  to  representation 
was  — 

"niioii  IIk'  followinif  fundaineutiU  couditions  :  First  that  tlic"  State 
"  Ciiiisiiiution  sliiiU  novel'  be  so  ninended  as  to  deprive  any  citizen  or 
class  of  cillzmis  of  the  riilled  States  of  the  rl^lit  to  vote,  who  are 
ciitiiliil  to  vote  by  tlie  Constitution  Iiei'oln  reeognlzed,  except  as  a 
piiiiisliiiutit  for  such  eriini'S  as  are  now  felonies  lit  commou  law,  whereof 
tiny  shall  have  been  duly  eonvicted  under  laws  eiiually  applicable  to 
all  tin;  inhabitants  of  said  State :  I'lUiriilcd  that  any  alteration  of 
said  Constitution,  prospective  in  its  effects,  may  be  made  in  regard  to 
tlic  time  and  place  of  residence  of  voters.  Second,  That  it  shall  never 
be  lawful  for  the  said  Stale  to  deprive  any  citizen  of  the  I'nited  States, 
oil  account  of  his  race,  color,  or  lu'evioiis  condition  of  servitude,  of  the 
lisilit  to  hold  oirice  under  the  Constitution  and  laws  of  said  State,  or 
upon  any  such  ground  to  require  of  him  any  other  fiualilieations  for 
iillicc  than  such  as  are  reiiuircd  of  all  other  citizens.  'J'hinl,  That  the 
Stale  Constitution  shall  never  be  so  amended  or  changed  as  to  deprive 
any  citizen  or  class  of  citizens  of  the  United  St.ates  of  the  school  lights 
ami  privileges  secured  by  the  Constitution  of  said  State."  "^ 

The  last  condition  referred  to  the  establishment  of  a  system  of 
free  education  for  all  children  in  the  State. 

A  hitch  in  the  proceedings,  caused  by  the  action  of  her  legis- 
lature, made  Georgia  the  last  State  to  obtain  rehabilitation.  Alter 
licr  ratification  of  the  Fourteenth  Amendment  and  the  admission 
of  lier  rciiresentatives  to  the  Thirty-ninth  C^)iigress,  the  legisla- 
ture, believing  tlie  State  secure,  admitted  members  -who  wore  dis- 
([ualilied  by  the  Fourteenth  Amendment  and  ousted  from  tlicir 
scats  all  colored  men  elected,  upon  the  ground  that  altiumgli  the 
State  Constitution  gave  them  the  right  to  vote,  they  had  acquired 
no  riglit  to  hold  olliec ;  and  then  rejected  the  Fifteenth  Amend- 


'M  111  St.  at  L.,  p,  03. 

151 10  SI.  ulL.,  pp.  07,  80, 


>M  16  St.  at  L.,  pp.  63,  07,  80. 


250 


KECONSTlirCTIOX. 


[«'1IAI'.  II. 


nioiit."''^  Tlio  Supi'pine  ronrt  of  the  State  snl).so(pU(iitly  liuld  tliiit 
iu'i;i'0('s  liiiil  tliu  coiistitiilidii;!!  lijrlit  to  liolil  (illitHi. '■''■'  'J'lii'  I'"uiti(tli 
Congress,  in  Deccinber,  18(i9,  rofiisuil  to  admit  Irt  delegation  tn 
either  house,  hut  lefeiied  tlieir  eredeiitiiil.s  to  the  ronriiitters  dii 
I'rivilefjes  and  l^leetions.''"''  On  Deeeniher  "2'2d,  (Jiant  ajiiinivcil 
"An  aet  to  promote  the  reeonstruetion  of  tiie  State  of  (ieoiLria." 
Tlie  fTovernfU-  was  reqniied  to  reeonveno  the  Oeiieral  Assenil)ly 
to  perfect  its  organization  in  conformity  with  tlie  new  statutory 
rcqti'ienients.  It  "  decdared  tliat  the  ex(dusion  of  any  person  or 
persons  elected  as  aforesaid,  and  heing  otherwise  qnalilied,  from 
participation  in  the  jirocecdings  of  said  Senate  and  House  of  itcp- 
resentativcs,  upon  the  ground  of  race,  color  or  previous  condilioii 
of  servitude,  would  be  illegal  and  revolutionary,  and  is  herehy  pio- 
hihited."  All  niciuhci's  were  required  tit  take  a  test^oatii,  swear- 
ing that  they  were  not  disciualilied  by  the  Fourteenth  Aniendnicnt, 
under  the  penalty  of  [)unishnient  by  the  Federal  court  for  perjniy, 
'i"he  ratification  of  the  Mfteenth  Amendment  was  made  a  further 
condition  to  the  admission  of  the  State  to  rijpresentation.  And 
liu!  President  was  directe<l,  on  the  ap[)lieation  of  the  governor,  to 
cm[)loy  the  army  and  navy  to  execute  the  provisions  of  the  act.''*' 
The  State  was  coerced  into  submission.  Her  legislature  restored 
the  blacks,  excluded  the  disfranidiised  whites,  and  ratified  the  new 
Amendment.  ( )n  July  loth,  1.S70,  an  aet  was  passed  which  linally 
restored  to  her  representation  in  Congress.'''"  For  the  first  time 
since  December  20th,  18(10,  Congress  represented  all  the  United 
States. 

Hut  military  despotism  in  the  South  was  not  ended  by  the  ad- 
mission of  tlie  States  to  representation  in  Congn^ss.  The  govern- 
ments which  had  been  set  in  operation  by  the  army  were  too  weak 
to  maintain  themselves  after  its  support  was  removed.  Composed 
of  the  proletariat,  ignorant  blacks,  led  by  unscrupulous  men  of 
mixed  race  and  the  white  carpet-baggers'"''*  from  the  North  and 


'5'  Blaino,  Twenty  Years  in  Con- 
gress, vol.  ii,  p.  iCA. 

iM  Wliito  V.  Clements,  31)  Ga.,  2,')2. 

155  Bliilne,  Twenty  Years  in  Con- 
gross,  p.  4G4. 

iM  10  St.  at  L.,  p.  80. 

»"  IC  St.  at  L.,  p.  363. 


"8  So  odlled  liecauso  they  were 
supposed  to  have  taUeu  all  their  prop- 
I'l'ly  witli  tlicm  in  a  earpct-bag.  The 
term  was  originally  applied  to  tlio 
wild-eat  liankers  in  the  AVcst,  but  lias 
gaiiKMl  an  end\iring  plaeo  In  historj- 
by  its  application  to  the  Northern  ud- 


§ns.] 


MII.ITAKY   GOVKRNMKNT    AITKU    IlKCONSTntTTION. 


".siiillinviifjs"  in  tlio  South,  who  had  (h'sertud  thi'ir  own  jico^ilo  in 
till'  lidur  of  (Iffoiit,  thi'v  looted  tiic  jiulilic  ti't'iisurirs,  and  took  viMi- 
i^iaiK'c  iifion  their  lorniiT  niant('i-s  liy  ojipivssivc  taxation  and  ille- 
1,'al  [ili'di^cs  III'  the  eredit  of  tiio  States,  to  ohtain  nionc}'  whiili 
Uh'v  iiiiylit  steal.  The  tax-jiajers,  Union  m^n  '■''•'  as  well  as  former 
('(iiifeilerates,  eondiined  against  them.  Disfranohised  as  were 
iiiMiiv.  and  out-voted  as  were  tiie  rest,  the  owners  of  property 
i(-;iirti'd  to  violenee  and  inlimiilation  to  jiroteet  their  rights.  The 
W'liiled.eajrne  and  the  Ku-Klux  Ivlau  sproa<l  terror  anioni;^  the 
in:  Mis;  and.  upon  the  call  of  carpet-bag  governoi's,  President 
(liaiiL  sent  f.oldier.s  to  preserve  order  and  snjiorvise  elections. 
Tin;  writ  of  habeas  corptis  was  suspended,''^"  and  more  than  six 
hundred  niilitar\  arrests  were  made  in  a  fi'w  counties  of  South 
Ciireliua  during  a  single  year.'"' 

liiil  the  use  of  the  army  was  not  coidined  to  the  Hidijngation  of 
ll:i'  taxpayers.  The  thieves  (juarrelled  over  tlieir  plunder ;  rival 
(jDvernoi-s  and  rival  legislatures  claimed  recognition  and  authority; 
ami  the  decision  as  to  the-  legitimac}- of  each  was  submitted  to  the 
Feiloral  Attorney-Cieneral,  whose  awards  were  sujjported  by  the 
;iriiiy.  I'2ven  the  judges  of  the  Circuit  and  District  Courts  of  the 
I'liited  States  took  sides  in  the  disputes  ;  gi'anted  injunctions  to 
assist  tiieir  partisans  ;  and,  it  was  charged,  shared  in  the  plunder 
tlnis  ol)tained.  Grant  endeavored  to  persuade  the  Supreme  Court 
(if  the  United  States  to  detail  one  of  their  mendjere  to  pass  upon 


voiiiiiriTs  wlio  moved  to  tho  South 
tluiiii^'  tho  iioriod  of  lleoonstriiotiou, 
ami  tipciU  tlio  leudorsliip  of  the  lli'|mb- 
liiiin  |i;irly  them.  A  tewamonj^  them, 
linwivcr,  were  men  of  character  as 
well  as  ability.  Amongst  these  wna 
fiovi  riior  Daniel  II.  Chamberlain  of 
Scmth  Carolina.  His  career  Is  de- 
soriheil  by  Allen,  History  of  tho  Ad- 
ministration of  Governor  Chamlier- 
lain.  The  best  account  of  tho  sitiia- 
tiim,  from  their  point  of  view,  is  A 
Foci's  Krrand,  by  one  of  the  Fools 
(Alliicn  W.  Tourpee). 

'■''■'  Tills  is  admitted  by  Blaine, 
Twenty  Years  in  Congress,  vol.  11,  p. 
4711. 


>'">  St.  at  L.,  i;i,  1."). 

"1  .\pplel(iii's  .\niiiial  Eni'y<'lopiB- 
dia  for  1H71.  The  Cdtinrcssi  iiiul  re- 
port tjivoM  an  account  of  the  Ku-Klux 
Klaii,  House  Ili'porls,  No.  22,  Parts  1 
to  i;),  42d  Cong.,  2d  sess.,  vol.  11,  Fel). 
11),  1872;  Senate  Reports,  No.  11, 
Parts  1  to  13,  ibid.  House  Mis.  Doc, 
No.  2,3,  40tli  Coni;.,  M  sess.,  vol.  1. 
Jan.  IH,  18()9.  A  pood  account  of  the 
organization  of  the  society  in  Noitli 
Cai-olina  is  in  the  testimony  taken 
upon  Governor  Holdon's  impeach- 
ment trial,  infra.  Tho  best  hislnry 
of  the  white  outrages  in  the  South 
Is  by  Cox,  Three  Decades  of  Federal 
Legislation. 


258 


KKC'ONSTKrCTION. 


[t'llAl-.  H. 


(iiif  siicli  controversy;  but  witli  tlieir  usual  wisdom  they  decliiic(l 
to  iuterfore.'''^ 

So  gii'iit  were  tlic  (lisorder  and  corruption,  tliat  tivo  KimIl'i;i1 
judges  in  llie  Soutli,  durinj;  (irant's  adniinistration,  \v(!re  foivoil 
to  resign  so  ;ts  to  eseapo  inipeaclinuMit  liy  tlu;  national  HnustMif 
Representatives.  W'itliin  live  years  after  the  Heconstruetion  \v't. 
islution  till!  (iovernois  of  four  of  the  Southern  States,  besiilcs 
a  nuniliei'  of  Slate  judges  and  other  administrative  o^ieer^i,  liail 
iieen  inipeaclied  ;  "'■'  one  of  i.  jiu  eonvieted  and  removed  finni 
oiliee;''^  a  lil'lli  had  lh:d  the  State  to  avoid  impcaehment  ami  ;i 
eriminal  [irosccution  ;  '"''  and  an  attemitt  to  iiii[)eaeh  a  sixth  "'''  hud 
l)een  almost  sueeessful.  In  Arkansas,  hefoie  the  service  of  pm- 
cess,  tlu!  J  louse  began  the  proceedings  by  locking  the  (roveriior  in 
the  executive  chamber  and  barricailing  the  door."''  In  the  saiiK^ 
State,  two  years  later,  in  1874,  two  Kepublican  governors  aiiil 
two  Republican  legislatui'es,  both  sides  representing  a  minority 
of  the  people,  claimed  legitimacy.  One  governor  was  intreuciicil 
in  the  state-house  with  militia  and  cannon  for  his  proteitidii. 
while  the  otiier  proclaimed  nartial  law  and  marched  with  tnxips 
to  attack  him.  The  interference  of  the  Federal  aiuny  protecteil 
the  man  in  possession.""" 

The  greatest  ti'iivesties  of  local  self-government  took  jiliicc  in 
iiouisiana.  'J'here,  on  jViigust  itth,  1.S71,  the  Republican  St:itf 
Convention  was  organized  in  the  room  of  the  Circuit  Court  df 
the  United  States,  and  l"'eileral  soldiers  prevented  the  adniissidii 
of  any  delegate  without  a  [lass  from  the  marshal  of  ihe  rnitufl 
States.  During  Januar}-,  187:i,  thi;  marshal,  sui)ported  Ijy  tin' 
army  of  the  I'nited  States,  arrested  members  of  the  State  legisla- 
ture in  order  to  overturn  a  majority,      liater  in  the  same  montli,  ;i 


"'■-  A|ipl('l()ii'K  Amnml  Encyclopu'dla 
for  1S72,  p.  4sr). 

""'3  Oovci-iKir  Williiim  W.  Holdi'ii  (if 
North  Caniliim,  in  ls71;  Hariisoii 
Rcotl   of   rioiiilii,    Powell   CliijUiri  of 


"■'<  Ilolileii  of  Noiili  (laroliiiii. 
"■•■'  Hiilloek  of  Gi'or(.'iii. 
™  II.  K.  Scolt  of  Soutli  t'iii-oliriii,  in 
1H72. 

"''  Journal  of  Arkaiusas  House  nf 


ArkauHus,  anil  Hen ly  0.  Wannoth  of  llepicsoiitativi'sfor  1S71 ;  Tlie  liruni:,- 

Louisiana.     Tli.'   last  tluon  in   ]«72.  HaxtiT  War,  liy  John  SI.  D.invll;  At- 

These  jiroceeilinKw,  wliirli  givn  an  in-  lanlie  Mont  lily,  vol.  xxix,  p.  .SSH. 
ntru<'livo  pictUH!  of  the  tinn's,  will  Iks  "■»  The]5rooks-13axter  War,  liy.rolin 

(leserllied  in  a  sulisequont  chapter  on  51.  Darrell. 
Impenrhnienl. 


I.oriSIANA. 


259 


iimnliii'  (if  St:it(!  sciiiitoi's  wi'W  ,t;ivcii  itifiij^o  on  t\n  arnR'tl  revcimn 
ciittiT  ol  till!  I'nitcil  Stiitos  toiivdid  iiiicst  liy  llie  st,'i;LCf;iii(-iil-;iiins, 
1  Uii.s  K'liVL'    tliinr    liimse    iiRfiipiihle  of    nation   Uiv  \\;  '..   of    a 


am 


I[I10II 


.'''"      A  few  weeks  bef 


(ire 


Duicll,  tlie  Circuit  .liidLff  of  tli' 


('iiitcd  States  in  tlio  saine  Stiite.  eiijoiiied  a  cliiiiuiiiit  from  aeliiig' 


i;s  iroveriio 
liinillv.   wlieli  oi 


V  of  Louisiiiiiii  or  asscrtiiiir  anv  claim  to  tiiat  olli 


11(1 


it  of  coiiit,  issued  till' famous  "midiii<dil 


onliT, 


ill  wiiicli  lie  directed  tlie  maislial  of  tlie  I'liiteil  States  to  t:dvO 
jiiississioii  of  tlie  stale-liouse  duriii;.'  tlie  meeting' of  tlie  lei^'isl  itiire, 
and  to  exclude  all  wlio  ie,  liis  oiiiuioii  had  not  hecii  lawfully 
ch'ctcd ;  thus  directiuc;  him  to  >isur[>  llu'  most  imiiorlaiil  con- 
stitutional powci'  of  a  Icf^islative  house,  tin;  deteiiiiiiialioii  of  the 


(iiialilieations  oi  its  members 


170 


With  this  or 


■(ler  as  liis  liaiiiu 


r  th 


iiiiii'slial  le(l  a  trooj)  of  Federal  soldiers  to  the  stale-house  and 
liy  fnic('  prevented  any  from  taking  part  in  the  org  nization  of 
the  legislature  without  such  credentials  as  the  Federal  judge 
(Irtciiiiiiied  to  be  sullieieut.'"'  Filially,  on  .January  4th.  iHTo, 
(iciieral  de  'J'robriand  imitated  Charles  I;  and,  more  successful 
tliiiii  the  King,  entered  a  house  of  the  State  legislature;  with  a  lile 
ef  soldiers,  arrested  and  ejecteil  at  the  point  of  the  bayonet  five 
iiicmhers  with  the  clerk;  and  not  only  obtained  iinmunity,  but 
actually  escaped  censure  from  either  Congress  or  his  superior 
ollieei's.'"^ 


'™  Aiiplotoii's  Annuiil  Eiicyclopip- 
(lia,  1K71,  pp.  172,  -l?;!;  ihid.,  for  1M72, 
p.  17;  Cox,  Tliri'c  Dim-ikIcs  of  Fcdenil 
Lcnlsliitioii,  pp.  ,').')."),  T)")!!. 

'"''  Tli(>  Kiipi'ciiie  Court,  fur  want  of 
jiirisilii'tioii,  ilc'iiicil  n  writ  of  |ini!iilM- 
tiiiii iiKiiinst  lliis procfiMliii};.  Kx  jiuiir 
Waniioth,  17  AVmi.,  01.  TliU  order 
was  coiidciMiicil  111  a  n'|)ort  of  u  coii- 
trrcssidiial  coiiiiiiiltt'c.       IIoii.sn   Jlis. 

rilU'.,   Xo.  211,  -I'Jd   ('0M(,'.,  2(1   RCSH.,  vol. 

iv.  An  alistnicl  is  reprinted  in  Apple- 
ton's  Annual  I'lneyelopipdiii  for  1H7;1, 
pp.  417,  14S. 

'"'  Appleton's  Annniil  Eneyelopii'dia 
for  1.S72,  p.  4811. 

"- TIm"  reports  of  r()nj.;r(?BKionnl 
('"iiiinilleeR  and  other  persons  on  tlie 
8ubj('(.'t,  are  printed  in  Applctou's  Kn- 


eyelopipilia  for  187(i,  pp.  494-498,  7.10- 
712.  Tlie  white  party  were  ftiiHlly  co- 
erced into  th(>  aeeeptaiice  of  what,  wan 
known  as  Iho  Wheeler  eoniproinise. 
Hy  this,  tlio  decision  as  to  tlio  con- 
tested elections  was  snlpniilled  to  \ho 
arlpilratioii  of  the  congressional  coin- 
niiltee  of  investij»atlon;  and  they 
aKree(l  that  after  tlio  award  had 
been  ratilled  hy  the  leKislativ(>  eoin- 
inittee.s  on  elections  and  ([ualillea- 
tions,  and  by  th(<  approinialo  houses, 
a  n^soliition  should  1j(!  adopteil  Ijy  tho 
let!islaturo  nu'oKni/.in).?  as  governor 
the  Repuliliean  KellottR,  whoso  chv- 
ti'in  w.-is  ilisputc'l,  and  deciariiiK  that 
;,..  :iii(l  Iho  rest  of  his  tioveriunent 
would  not  li(<  disturbed,  and  he  W(nild 
not  b(!  lnip(!achiMl  for  any  past  olUcial 


200 


KECOXSTItUCTinX. 


[CUAI'.  U. 


15y  sucli  uses  of  tlie  Ft'dcnil  iiniiy  uiuk'r  (leneral  (iniiit.  civil 
libeiiy  was  dunieil  tliu  Soiitli  until  tlio  eiul  of  lu.s  two  admiiiislr.i- 
tions,  ill  lcS77,  when  'J'ildoii  and  Hayes  eacdi  claimeil  to  be  electuJ 
President.  .After  tlie  decision  of  the  JCleetoial  ('(uiiiiiission  was 
(.■h'arly  manifest,  the  Soiitliern  representatives,  wlio,  by  iiiil)ii.s- 
teiiiiy-,  niiniit  have  prevented  thi;  count  of  tlie  votes,  made  a  har- 
f^'ain  with  the  I'epreseiitativcs  of  Hayes,  by  which  they  iiL,'ri'cil 
to  withdraw  tlieir  dilatory  itroceediiiy-s  if  he  would  Ieav(^  their 
State  Ljovernnieiits  alone,  lie  carried  out  the  eontract,  thus  desert- 
in;^  the  Southern  eandidates  who  had  aided  him  in  securini^f  his 
position,  and  eacli  of  whom  liad  obtained  more  vt)te8  for  f,fov- 
eriior  than  lie  for  President.  With  the  withdrawal  of  the  troons, 
the  earpet-lnij^  goveriiiiients  fell  likt;  houses  built  of  cards.  In 
one  State  only  was  there  any  friction:  Louisiana,  where  there 
were  two  I'ival  letjislatures,  and  tlu;  lottery  company  owned  eiioui;li 
blacks  in  oie  of  tiidin  to  give  the  other  by  their  secession  the 
(juoium  neeessary  for  a  valid  organization.  A  contiaet  was  made 
with  the  corporation;  and  its  legislatoi's  inarelied  like  cattle  to 
the  other  house,  which  then  orij;-anized,  and  eslalilished  a  valid. 
erticient  and  honest  government.  But  as  the  price  for  this  rescue 
of  the  State  from  the  hands  of  its  des])oilers,  the  tax-payers  were 
obligerl  to  insert   in  the  new  Constitution  provisions  which  leijal- 


lids.  Tlic!  text-  of  tills  c:,tnu)i-(liiiiiiy 
<locum(Mil  may  be  found  in  .ViiiiIcIdii's 
Annuiil  Eiicycl«|n[Hliii  fur  IH?'),  p.  457. 
Tlit<  ngrcciiiciit  was  pcifuriiiiMl,  and 
Killiigtj  lliiis  si'ounMl  till'  coiilrol  of 
till'  Ki'tiiriiiii},'  lioaid  wliicli  was  usoil 
to  h'ivi!  the  cli'i'toral  voti'  to  Hayes, 
the  followiii;;  year. 

"Till'  uriu'i-al  coiiiillioii  of  affairs 
i.'i  till'  Stall'  of  Louisiana  sci'iiis  to  bis 
as  follows:  Till)  oonvii'tioii  has  bi-i'ii 
Hi'iii'i-al  anions  tlio  wliiti's,  hiuco  1H7'2, 
lliat  till'  Ki'llo;^^?  Kovi'ninii'ut  was  a 
usurpation.     This  convii'liou   anions 


cat  ipii'stions.  Hy  diaiigi's  in  tin'  l.iw 
('enlniliziiiL;  in  the  Governor  oviy 
form  of  political  control.  iiichiilini;llii' 
supervision  of  cliM'lions;  by  coiitinii- 
iiiK  tlii'KcturuiiiK  lioaiil  witlialisoluti' 
power  over  till' ri'tiiriis  of  elect  ioii-.;  by 
the  extraordiiiiiiy  provisions  eiini'tiil 
forthelrialof  titles  anil  rlaiiusloofllii': 
by  the  eonversion  of  the  pollee-foree, 
maliilaineil  at  the  expense  of  the  i-ily 
of  New  Orleans,  into  an  armed  liri^aclc 
of  i-ilale  iiillitia,  Hiiliject  to  the  eom- 
iiiaiid  of  the  (tovi'rnor;  Viy  the  creation 
ill  some  places,  of  monopolies  in  iiiai- 


them   has  been   strengthened  by  the  kets,    (jas-makin^,   water-works  iinii 

acts  of  the  Kelio^;;;  le^;islaliireaboli»!i-  ferries,  eleaniiiK  vaults,  removliiKlillli 

iiiK  existint;  courts  and  jinlf^es,  and  middoiiij;  workiis  wharliiijiers:  byiln' 

Hubslitutii];;  others  pri'sideil  over  by  abolitionof  courts  with  elected  jnil;,'i's, 

judpes  appointed  liy  Kellouv,   liavinp  and  the  Hubstitution  of  other  co\irN 

extraordinary  jurisdiction  over  polili-  with  judges  appointed  liy  Ki'Uopg  ia 


^<  :!8.] 


I.dl'lSlANA. 


261 


izcd  tlie  lottery  for  a  ]H;rioil  of 
tlii'  most  (lisL;'r;u'L'fu'  opisoilf  in  t 

(ivasiuii  (it  tlio  OiiiHtltuli'.m  of  tho 
Sliito;  liycimotineutspur'  .liinKcilmi- 
nally  iill  iktsoiis  who  nt;tfm|it.c<l  to 
nil  i>fliciat  [lo.slt.ions  unless  rot.iirni'd 
by  till'  Ki'tiiriiiniilk'linl;  l)y  iiiillinilcd 
nplinijiriiiliiMis  for  the  piiyiiiciit  of 
iiiililiii  expenses,  nml  for  the  piiymont 
iitl''t;islalive  wiirniiita,  voueliers,  and 
olii'cks  issued  (llI^in^;  the  years  1M70 
to  ]s72;  hy  laws  declaring  thai  no 
person  in  arrears  for  taxes,  afliT  de- 
faiill  published,  sliall  liring  any  suit 
ill  any  eunri,  of  the  Stale,  or  he  al- 
lowed to  1m'  a  wiluesa  iu  his  own  he- 
lialf;  measures  which,  when  eoupled 
with  tlio  extraordinary  burdens  of 
taxalion,  have  served  to  vest,  iu  tho 
lanmiaire  of  tJovornor  Kellog^''s  eonn- 
M'l,  'a  de)4re(!  of  power  in  tlie  j^o.ernor 
df  a  Slate,  si  arci'ly  oxereiied  liy  any 
SDvereiLtn  in  the  world.'  With  this 
ninviition  is  a  {.ji'iieral  want  of  eonli- 
ileriri' in  the  integrity  of  tho  existing 
Stale  and  loeal  olTlcials,  a  want  of 
coiiiideiiee  etiually  in  their  persons 
a[id  in  their  persouuel,  which  is  ne- 
ciiiapauied  by  llio  paralyzalion  of 
liiisiness  and  deslrueliou  of  values." 
l!<'port  of  Charles  Foster,  William 
Waiter  I'lielps  a^id  C"  irlisou  A.  rol- 
ler, suli-eoniiuiltei!  of  a  Cougri'ssional 
iiiinndttee,  whieii  was  adopted  by 
the  full  eominitte<>  and  presenled  to 
llie  house  by  Creorgi"  F.  Hoar,  Jan. 
Mill,  1K7.J.  A  majority  of  the  full 
i-iiiiiniittee  and  of  the  snb-eoniuuttee 
wiri'  Kepulilieaus. 

'"'Til.'  iiistory  of  this  transaction 
was  loid  by  the  New  York  Sun,  Nov.  20, 
I'^IH.  Thai  the  account  there  given 
is  correct  tlie  writer  Ijiiows  from  in- 
toMunlioti  given  him  by  a  pronunenl 
citizen  of  N'"w  Orleans.  ThoWorudey 
I'e'iicreni'O,  al  wliieh  the  bargain  was 
iiiaili'  betwei'U  Hayes'  repre.senlatives 
iiini    criaiu  Soullj(>ru  luonibors  of  tho 


twenty  yeitr-s.''"     So  closed  tliis, 
lie  history  of  the  I'liiteil  Stiites.''* 

House,  is  (iiscribod  in  the  New  York 
Herald,  Jan.  5,  ISKS. 

'"*  "lly  own  public  life  has  lieon 
a  very  brief  and  insiguilleant  one,  ex- 
tending little  lieyonil  tho  duralion  of 
a  single  term  of  senatorial  ofllee;  but 
in  that  l)rief  pi'riod  I  ha\o  se<'n  five 
juilges  of  a  liigh  court  of  the  Cnlled 
Slates  dri\i'U  from  olllee  l)y  threats  of 
impeacliment  f(U' coiriiption  or  malad- 
uiiuistra'i(Ui.  I  have  heard  the  taunt 
from  frii'.K.iiest  lips,  that  when  the 
Ignited  States  presented  herself  in  the 
East  to  talio  part  with  llii-  eiviliz(Ml 
world  in  generous  competition  in  the 
arts  of  lifi',  the  only  product  of  hor 
institutions  in  whieli  she  surpassed 
all  others  beyond  question  was  lier 
corruption.  1  have  sei'U  in  the  Slato 
in  till'  rnioii  foreiiio.-l  in  power  and 
weallh  four  judges  of  tier'  couils  im- 
peached for  corriiplion,  and  lb"  politi- 
cal adnilnisU'aiion  of  her  ehii'f  eily 
become  a  disgrace  and  a  by-word 
tliroiiglioiil  the  world.  I  lia»e  seen 
tho  chairman  of  the  Commilleo  on 
llililary  AIT.iirs  in  tlie  House',  now  r, 
distinguished  member  of  this  ci.uii, 
rise  ill  his  place  and  demand  the  i  .p  il- 
sioii  of  four  of  his  nssoeiales  for  mak- 
ing sale  of  tlieironicial  privilege  of  se- 
lecling  youths  to  be  ciliicaleil  lit  our 
great  mi  111. a  ry  school.  When  tlic:!;i'eat- 
est  railroad  of  the  worM,  bindii.g  to- 
gether the  continent  and  uiiiliag  tho 
two  great  seas  which  w.ish  our  shori'i-., 
was  linished,  I  have  seen  our  national 
triumph  and  exultation  turned  to  bit- 
terness and  shame  by  the  unanimous 
reports  of  three  coiiimitlees  of  Con- 
gress, two  of  the  House,  and  one  Inic, 
that  every  step  of  that  iiiighiy  enter- 
prise had  lieen  taken  in  fraud.  1  liavo 
heard  in  higliest  places  llio  sha  ueless 
doelrine  avowed  by  men  grown  old  in 
jiublie   olUce,  thai   the   true    way    by 


202 


KKCONSTIiCCTIoN. 


[cilAr.  II. 


Tlie  constitutionality  of  tlie  reconstruction  Icfj^islation  lias  never 
l)t'uii  decided  1)\'  the  Sui)renie  Court  of  tlic  United  States,  altlioiigli 
several  attempts  were  made  to  Ijrinrr  tiie  point  before  it  for  du- 
cisiou.i"''  Applications  were  ina<lc  to  file  hills  in  the  Supreiiu: 
< 'ouit  hy  the  Slate  of  Mississijipi  asj^ainst  I'resideiit  tlohiison,  and 
the  State  of  (ieorqia  against  (icncral  (iraiit,  to  enjoin  the  execu- 
tion of  the  acts  as  an  nidawfnl  invasion  of  the  i'it,dits  of  tlmsf 
respective  Stales.  Tlu^  Snpieme  Court,  howevi^r,  refused  ti>  enter- 
tain these  hills,  upon  the  <froiuid  that  they  involved  political  riL^lits 
and  not  the  rights  of  property,  and,  cousetiuently,  were  not  within 


wliicli  power  should  lie  tiiiinoil  in  the 
llcpiililh'  is  to  lirllio  till'  ppopl('  witli 
till'  oIllccH  crcntod  for  llii'ir  scrvlei', 
(Mill  tlio  trill"  Olid  for  wiiirh  it  slioulii 
111"  usimI  wlii-n  liaiMral  is  ilio  pmiiiotioii 
of  si'lllsh  uiiil>ili(m  ami  tlio  gmtilUa- 
tioiKit  piT"i)iiiil  n'M-iif;c.  Iluiv(>  hi'iifd 
lliat,  >'ii"«|iirl(iii  liaiints  the  l'oot--ti'ps  of 
tlic  Inintcd  ooiiipanioiiH  of  llii'  ProKi- 
ilciit."  (Sciiutor  Or. .fRo  F.  Hoar,  of 
M;issacIiU!»«tt»,  whi-n  nianafior  for  tlio 
IImuki-  of  tho  iiiipcai'linii'iit  of  William 
AV.  lii'lknap,  Trial,  pp.  2lH),  '201.) 

'•'■'  Till'  ni'W  coiuts  of  thii  rocou- 
ntnifli'd  Sditos  niiturnlly  bi'ld  tho 
Ri-iiiii.-iinirtion  Aits  Ut  be  constitu- 
liiiiml.  Iiiviii  1'.  Mayor,  !>7  Ala.,  0; 
KontiT  r.  Tlaiiicl-^,  '.111  (111.,  :l'.) ;  (lonu- 
Ui  r  Tavl'.i  U  (in.,  7I>,  00.  In 
<i<'i.i';;ui.  n  Hiajoritv  of  llii>  Siiprcim' 
CiiiHt,  li.y  ^MTiTi'iit  proccssi's  of  ratio- 
ciiinlion,  h.'id  Umf  Gcoruia  "in  elTi'i't, 
.tfi.mlril  froiu  till'  F»''l"Tiil  I'liioii,  mid 
wan  mil,  u«t4(  lar.  Iiruuf(ht  hark  ns  .a 
i-.iiii|iirii'fl  I'-rritory."  i  Nirliolas  ii. 
Hovi'ii.-r.  4g  «:i.,  ,514,  r<ll\.  Si'n  also 
ftf  K<'iin»-<l.v.  i  Rlrhardson  (S.  ('.),  21(!, 
2.;ii. '  III  SliisiHMijipi  fSlati-  r.  Wil 
liaiii?'.  11*  Miss..  (!i;l  !  ;  and  T''.\ii..». 
,'aMifrtw>il  r.  Kii'ld,  It.')  T.'xas,  7.">I  ; 
frnk  r.  .*<winiili',  CM  Ti'xas,  tVl,  'J.lli. 
V>\  '■:  and  thr  T'.  S.  Ciri-iiil  t'otirt  for 
Virginia  I  hi  rr  Di'dier,  2  Hiii;lii's,  l,s;i. 
INK,  per  Wait,!'  r.  ,1.1 ;  It  was  lii'ld  ;li,'il 
l-lii'     ri'i'onstrui'ti'd     constitulions    of 


tliosi)  Stati'b  wrrn  in  forro  within 
tliciii  as  soon  as  they  wi'iv  ivililiril  h.v 
tho  pooplo,  nilhoii|.!li  llirir  approviil 
liy  ('oiifji'i'H.s  wassoniolinii'aflorwanls. 
In  Jlis.-issippi,  it  w;i«  hold  that  the 
I'rosidont  had  tho  jiowor  to  appiiiiil  a 
provisional  {{ovornor  niiil  1o  i-ioalo 
provisional  ooiiiis;  that  thoso  cuiirls 
wore  I'ourts  croulod  by  tho  rnitiil 
Stales  in  tho  nature  of  toiritoml 
oourls;  but  that  tliey  oould  nol  try 
not  ions  at  ooninnm  law  without  a  jury. 
Slot  I  I',  liillnorry,  III  Miss.,  11!),  liit- 
laT,  141!.  Tho  court  saiil  that  the 
fnots  ostablishod  a  oonquo.st  of  thi' 
State,  alllunijih  this  was  an  un.'^oinid 
view  of  till!  Coiislitiition.  In  Nnrtli 
Carolina,  it  was  held  that  the  ai'lion 
of  tlie  eonvenlioii  onllod  under  tlii' 
direeiioii  of  the  ri-osidont  wa--  \.iliil. 
altlioiij;h  voters  (|iialilled  by  tlio  pro- 
vioiiH  Sl.'ilo  Constltntiou  wore  not  iil- 
lowod  lo  taUo  part  in  thooloetion.  Tin 
oourt  said  that  it  would  iissunio,  fur 
the  purposes  of  the  arjjiinioiil.  that  tlio 
St.at()  w.is  a  eoiiquoiod  nation,  sini'o 
that  roliovo<l  those  who  were  disfr.in- 
i-liis.-d  from  liability  for  troiiHoti.  In 
the  ni.-iller  of  K:,'an,K  Vod.  Ca.-.,  :in7; 
8.  c,  Fi  lilatoh..  ;)1!1;  Mr.  .Iiistire  Ni'l- 
ton  held,  before  the  reeonstniriion 
toKislation,  that  after  tho  roro^iiitien 
of  the  State  fjovornnieiit  by  .lohiiMin, 
military  ooiniiiissions  had  no  jiiriMlii.'- 
lion  iu  South  I'uroliua. 


<:;s.] 


iN(<>N>iri  riTioNAi.ri'v  f)i'  i,i:(;isi,atu)n. 


2(i3 


till'  jurisdiction  of  I'oiirts  of  cciuity.''"'  In  tlie  famous  case  of  Mc- 
(iiidlc.  an  apjjual  was  takon  to  tlio  Sn]iriMny  Coiiit  from  the  de- 
ii,i,iii  iif  tin;  Circuit  Court  of  tlic  rnitcil  States  upon  a  writ  of 
liilicas  corjjus  obtaiiicil  In-  a  prisoner  held  for  trial  liy  a  niililaiy 
ciiiiniiission  in  ^lississipjii  u]ioii  tiie  chari^c  of  ])uiilisl,inL;  articles 
ill  a  newspaper  which  impeded  the  reconslructiim  fif  tlie  State 
and  incited  a  hrea(di  of  the  ])eaee ;  and  the  ([uestion  <if  the  eon- 
.■tilutionality  of  the  recon.strnetion  acts  was  argu'.id  in  1)S(i8  by 
the  most  distinguished  lawyers  in  tlie  countiy.'""  The  majority  of 
llic  Supreme  Court  were  of  the  oj)inion  that  at  hiast  so  much  of  the 
art  was  unconstitutional  as  dejirived  citizens  of  the  United  States 
of  the  right  to  trial  hy  jury.  They  hesitated,  however,  to  en- 
L'a<re  in  a  conllict  \\ilh  a  co-ordinate  dciiartnirnt  uf  ilie  iroveriiment 
upon  a(piestion  of  so  great  political  importanci!;  and.  cunseiiuenlly, 
iigiiinst  the  jirotest  of  two  of  their  niemlpci's.'"'*  postfioned  their  de- 
cision until  the  succeeding  teiin  in  order  to  alTord  Congress  an 
opiiortuidty  to  repeal  the  statute  whiidi  gave  tlieni  jurisdiction. 
This  was  promptly  done,  so  that  the  apjieal  fell  with  the  law.'"" 
McCardle  was,  however,  discharged."""  In  the  case  of  Texas 
against  White,''''  the  validity  of  the  acts  of  the  government  of 
Texas,  which  was  recognized  hy  the  President  and  subsefiirently 
set  aside  under  the  Reconstruction  acts,  was  brought  before  tiie 
Supreme  Court  for  decisinn.  The  court  held  that  neither  tiie 
oidiuance  of  secession,  nor  anything  which  had  subseijuently 
(i'curied,  liad  put  Texas  out  of  the  liiion.'"'-  'J'hat  llie  gov- 
ciiiiiicnt  of  Texas,  during  the  war.  had  liccn  revolutionary-  and 
illegal,  find  its  acts  could  have  no  more  elTect  than  those  of  a 
•Ir  faHo  gov(irument,  whicii.  in  so  far  as  they  related  to  the  maiii- 
tennnci-  of  peace  and  good  oiiler  among  the  citizens  of  the  State, 
would  lie  respected  ;  but  that  all  acts  in  aid  of  llie  rcbidlinn, '•  or  in- 


'"'  Mississipjii  r.  .lolinwtii,  t  Wall., 
IT.",;  (ii'orniu  r.  Sla'iloii,  fi  Wall.,  .W  ; 
("'■>i(;ia  r.  ({rant,  G  Wall.,  211.     Tli- 

Mlllljc'ci  will  IllMlisCllSSCll  SllllSCM|110Iltly 

ill  till'  cliaptor  oil  the  Jiiiliclary. 

'  '  l-A-parto  SlcCardle,  (!  Wall.,  31rt; 
V  1 .,  7  Wall.,  ,i>()r> ;  Cox,  Three  Dociidiw 
"f  I'lMliM-al  Lcsislatioii,  p.  r.4S. 

I'nr  I'ii'lil'.surguiiu'iil,  sochls  Works, 

vni.  i,  p.  r,is. 


'"»  Justiics  Kiclil  nnil  Grior.  Their 
proti'.'<l  i^^  primed  .'<iiljs(vni('iitly  In  thp 
cliaplcr  on  tlu'.Indi.'lar.v.  Il  may  also 
lin  foiiiiil  111  I'li'ld's  Works,  vol.  I,  p. 

r.is. 

I'll  Kxpdiic  MrCaidh',  7  Wal!.,  006. 
i">  Field's  Works,  vol.  I,  p.  518. 
1"'7  Wall..  7(HI. 
I'-'Ilild.,  p.  720. 


2(i4 


KKCONSTUUCTION. 


[(•IIAI-.  II. 


t('ii(U'(l  to  defeat  (lie  just  rij^lits  of  oiti/-ei)s,  were  void."  ^^'^  That  tlie 
action  of  the  I'l'esident  was  only  iirovisioiial.  That  the  acts  of 
the  uToveinnieiit  which  he  iccogni/ed  were  valid  before  Coiifrrcss 
interfered,"'^  and  that  Congress  liad  the  exclusive  riglit  to  <li;ter- 
miiie  whether  any  government  tiiere  existing  was  a  repuhlicau 
government  which  should  be  recognized  by  the  United  States.'^ 
The  conrt  evaded  a  derision  u{ion  the  constitutionality  of  tlie 
Reconstruction   acts,  saying:  — 

"  Nofhinir  in  llio  case  bcfoie  us  rc(iiiiri's  the  oomt  to  i)ass  jiidirini'iit 
upon  till'  coiistiiulionnlity  of  aiij-  p;uliciil:ir  piovisinu  of  those  act>.." '"' 
"  Wc  do  not  in(|iiii-(;  lion'  iiilo  tlio  coustitutidimlily  '>(  this  lcij;ishitiuii  sd 
f.ir  lis  it  ri'liilcs  to  iiiilitiuy  luithority,  or  to  the  p;irainoiiiit  authority  of 
Congress." '"" 

There  are,  however,  two  dicta  by  Mr.  .'usti(-c  Swayne  in  otlit-r 
cases  to  the  ett'ect  that  — 

"  The  X;itioii!il  (  oiislituiiou  ■iivcs  t<j  Congress  the  power,  iiiiioiij; 
others,  to  dechuc  war  and  suppress  iu-Mrreclioii.     The  hitter  jiowcr  is 


'83  7  Willi.,  7:t:i. 

i«<  Il.id.,  730. 

'"5  "Tlii>  iiinv  froiMiion  iieci'ssmily 
bowiiiic  part  of  tho  ])r(ii)li',  and  t!i(> 
people  still  ciirisliliiti'il  tlic  Stale,  for 
States,  like  iinlivuluals.  n>(;:iii  their 
idenlily,  th(>UL!li  chaiiKeil  to  some  ex- 
tent ill  thi'ir  eoMsliluetit  eleiiuiiits. 
And  iT'was  tlie  Stale  thus  eoiistitu<i'd 
which  was  now  entith'd  to  the  foii- 
stilutioiial  guaranty  of  a  repul  lican 
form  of  t;iivi'rniiioiil."  "  There  tjcinu 
then  no  government  in  Te.\as  in  cini- 
stltutional  relations  with  tho  Union, 
it  becaiue  tho  duly  of  tho  United 
Stiitea  to  provide  for  the  restoration 
of  such  a  government.  But  th(>  ri'- 
Rtoraliiin  of  the  government  which 
exist cil  l)cfor(>  till!  rclielliori,  without 
a  new  election  of  ollleers,  was  obvi- 
ously iiu|iosKil.|(>;  and  before  any  such 
election  could  properly  he  held,  it 
was  necessary  (hat  the  new  Com. lit  u- 
tion  should  receive  siuh  uincndmi'nts 
as  would  conform  its  i)rovisicjiis  to 
tho  new  conditions  creiiteil  liy  eninn- 
oipaiion,  and  afford  adeipuite  security 


to  the  )M>ople  of  tho  State.  In  tlie  ex- 
ercise of  the  power  conferred  hy  the 
fiuai-anly  <'lause,  as  in  tlie  exercisiMif 
every  niic].  constitutional  power,  a 
discretion  in  thi"  choice  of  means  is 
necessarily  allowed.  It  is  e.-,seiuial 
only  that  the  means  must  he  neces- 
sary ainl  proper  f<ir  carrying  into  ex- 
ec'ulion  the  power  confi^rred,  lliroii;^li 
the  rcsloration  of  tlie  Stale  to  itscen- 
slilulional  relations,  under  a  repali- 
lican  form  of  (joveninuMit,  and  tli.'it 
no  acts  be  done  and  no  auUioriiy  ex- 
erted wliii-h  is  ('ilher  -  .l.ihitcd  or 
unsiinctioiH'd  by  tli'  (VuHli.nlion." 
('liief-.Justi;  •  (,'lui'ie  •!<  Texii..  i:  While. 
7  Wall.,  700,  72H,  7:".' 

1'"  Illid.,   '-      .     '        Ipi   r  >scipieiil 

case  where  lidity  of  u;i  older  hy 

a  district  i.  .mander,  sellinji  Uhlilf 
tho  decr(>e  of  ix  Sl.ito  courl,  eanie  ir 
(piestion,  tlie  Supreme  Tourt  lu'ld  lii'' 
order  void  as  not  uut'  rized  by  llw 
act,  without  passing  upon  the  pev.er 
of  Congress.  Kaymoiiil  v.  'J'lionias, 
',11  f.  S.,  712. 


§  '■^■] 


VXCONSTITl'TIO.NAI.irV    Ol'    1.1.(;1SI,AT;()^ 


205 


not  l;:nilL'(.l  to  victories  iu  tlie  field  and  lliu  dispot'.sioii  of  the  iusuiireiit 
fiHirs.  It  carries  with  it  inherently  riffhtfiil  authority  to  guard  against 
all  liiHiiediat  renewal  of  tlie  oonliict,  and  to  remedy  the  evils  growing 
(int  (if  its  ri^ie  and  progress."  '" 

And  speakinLf  of  a  constitution  adopted  under  the  coercion  of 
the  lecoiistiiictioii  legislation  :  — 

"Congress  autiiorized  the  State  to  frame  a  constitution,  and  she 
fleeted  to  proceed  within  the  scope  of  the  auliiority  conferred.  The 
result  was  submitted  to  Congrcsa  as  a  voluntary  and  valid  otlcring, 
and  was  so  received  and  so  recognized  in  the  subsequent  action  of  that 
li(i(iy.  The  State  is  estopped  to  assail  it  upon  such  an  assumption. 
I  |i(iTi  tlie  same  grounds  she  miglit  deny  the  validity  of  her  ratiiication 
(if  the  constitutional  amendments.  Tht^  action  of  Congress  upon  the 
^•lllj(•(•t  cannot  be  in.piired  into.  The  case  is  clearly  one  in  which  the 
jiiilii'ial  is  bound  to  follow  the  action  of  the  political  department  of  liie 
goveru'iient  and  is  concluded  by  it."  '*' 

Tiic  vilidity  of  the  acts  of  Coiigress  is,  therefore,  open  to  in- 
vestigation; and  now  tluit  more  tliiin  a  (jiiarter  of  a  century  has  since 
elapsed,  and  what  they  accomplished  cannot  be  disturbed,  it  wonld 
seem  as  if  the  question  were  capable  of  a  dispassionate  considera- 
tion, in  view  of  tlie  luno'tiagc  of  tiic  ( 'onstitiilioii.  tiic  decisions 
cif  llic  courts  on  cognate  (pK'stioiis  and  tlu'  action  uf  Congress  in 
(ithii-  respects  towards  tiic  Stales  wliich  wi'ie  thi^  seat  id'  IJic  insiir- 
rcitiiiii,  it  seems  iiiipossihle  lo  tiiid  any  jiistilicatioii  lor  them  in 
law.  precedent,  or  eonsistenc}'.  The  war  was  instituted  against  tlu? 
South  upon  the  theory  annonneed  by  the  President'*'-'  and  botli 
liiiiises  of  Congress.""'  that  it  was  not  the  States,  Imt  a  portion 
(if  their  iiihaliitants,  wlio  had  rebelled.  'I'iie  remanence  (d'  ilic 
States  in  the  I'liion  was  asserted  i:i  both  the  statutes  during  tile 
war  inijiosiiig    upon    them   a  direct    tax,'"'    and    those   sini'c    Xivi 


'■'  It.i.VMioTid  r. Tlioinas,!)!  tT,S.,712, 
711,  715.  Ami  lo  the  same  effect  in 
Strn:iii  ,■.  Kalm.  11  Wall.,  ■lllll,  .W". 
Scral-.iCiiiHi  r.  Harry,  If)  Wall.,  CIO, 
i'''i:i.  lii  .M.Mr-!i  r.  llun-du^'hs,  1  Woods, 
■li;i.  ITil  -172,  Mr.  .Iiislice  Bniilley  held 
ut  chciiU,  lliut  the  validity  of  the  rr- 
lonsinii'ted  Constitution  of  (ieorjiia 
Wiis  a  |iolitieal  question  as  lo  wliieli 
tlie  iiiui-ts  must  follow  Coiit^vess,  and 


that  "Konie  sort  of  ri'haliilitatioTi  was 
necessary." 

>»8  Wliile  r.  Hart,  13  Wall.,  (Illl,  (1-1!». 

"'  See  Lincoln's  proelanmlivMi  cal- 
ling; for  troops,  Hiipru,  note  1. 

1'"  .S'iq)ru,  over  note  11.  Se(!  Tim 
Amy  W.irwicli,  '2  Spranuo,  I'J.'l,  ICl, 
l."ill,  UiO;  s.  (',,  1  IVd.  ('as.,  pp.  71!t, 
S17. 

'•■•'  1'2  St.  at    I..,  :i'.)5,  4'2'2.     See  also 


•Jf)(! 


i;K('i»xsTi;r("Ti()N. 


[<  ilAi 


])eiU'('  ami  lief'ii'(>  llic  I'ci'oiistnictidii  li'<,nslalinii,  dividiiiLr  tlirm 
into  (listiirts  iind  circuits  lor  tlic  courts  of  tlic  ruitcil  Stiitrs."'- 
wliicli  can  only  sit  in  States,  not  Territories,'"^  and  providiiii,'  fur 
lli(^  exjicnses  of  tin;  courts,  held  tliero  with  the  consent  of  Con- 
t;ress  afti'r  they  liad  heen  divided  into  military  districts.  Tlir 
Senate  coniirnied  th(3  appointments  of  judges,  district  attorneys, 
and  marshals  in  those  States  for  that  ])urpose."^  The  Cliicf- 
.lustiiH!  of  the  I'nited  States  sat  in  Is'orth  Cai'olina  in  .liiin. 
llSi)".'"''  at  a  time  wiien  the  Statt'  was  in  cliarije  of  a  district  'iiiii- 
niinder.  The  existence  of  the  disfranchised  States  in  the  I'liidii 
was  consiMjuently  recognized  hy  all  three  of  the  dcpai'tments  iiitu 
which  the  l''cderal  government  is  divided.  "Martial  rule  ciiii 
never  exist  where  the  courts  are  open  and  in  the  proper  and  ini- 
ohstructed  exercise  of  their  jurisdiction."  "  If  this  governnuiit 
is  continued  after  the  cotnts  are  reinstated  it  is  a  gross  ahuse  of 


.  "  196 


The  guaranties  of  liberty  in  the  Constituti( 


power 

intended  for  war  as  well  as  jjeace.  for  times  of  rehellion  as  will 
as  of  general  actpiicscencc!  in  the  authority  of  the  governuiriit. 
and  ai'e  only  suspended  when  military  necessity  suspends  all  l;i\v 
and  the  courts  are  closed.'-'" 

The  iegalitj-  of  the  ratilication  of  the  Thirteenth  and  Fourtceiiili 
Amendments  depended  upon  the  legal  existence  of  the  State  i,'ov- 
ernments  wlii<h  ratitieil  them,  ami  which  were  not  till  after  thiit 
ratilication  admitted  to  representation  in  Congress  and  relieviil 
from  military  (lespotism.""*  The  power  of  the  national  governiiunt 
to  sup]iivss  insurr(!clion  nndoidiledly  carries  with  it  the  power  to 
prevent  a  sid)se(pient  outbreak  hy  llm  maintenance  of  military  u'''^- 
ernnient  until  all   danger  has  passed  away.""'     'I'he  maxim /' //" 


tlic  (let,  wliicli  ri'ciii's  the  ciinKciit  of 
Vlrnlniii  1.1  (lie  fi)riiiMlii)ii  iit  West  Vii- 
KiMii,  12  Ht.  Ill  I,.,  {'<:». 

wa  Act  ot  July  -ja,  IHCfi,  1 1  St.  nt  L. 

>'•'■•  Sen  AiiM'rle:in  Iiisiiraiico  Co.  V. 
Cmler.     1    Vi'liTs     .111;    M.-Alli.'      .    ". 

u.  s..  Ill  V.  s.,  in, 

'"*  See  JohlliMmV  velixil'  I  lie  ^;l•l•llllll 
siipplenii'iit  "  '  the  lici-niistriK  1  i(in 
Acl,  July  III,  JsilT, 

m  Clmse'H  Deil^i.iliM,  p.   |;l'2. 

'"•  Mr.  Ju»tle«  l)uvls,  wilh  tlio  eon- 


eiinciu'e  nV  a  niiijority  of  the  Siipiviih- 
Courl,  ill  I'lr-jitirlc  MilHuHM,  4  Wall..:l. 
\i'.  This  siiliject  is  iIIhiuss.hI  --uIw- 
cnieiilly  llliiler  llie  Wiir-l'iiwer. 

'■■;  XhlM. 

•'•i»  See  Huprii,  over  noln  lilt;  Jnliii- 
moii'h  mnfsii»e  on  the  ailiiiUnleii  e( 
Tenluiiuee  lo  re|iri»u\i|itati  >M  111  I'eie 
urcHH,  i|nole(l  wHjiiNli  (HIT  nete  Ht ;  iiml 

IllHM'hloj'    Ihll   Kei'ond    t«a|>|lllMlielll    1. 

the  IteeonsllllelloM    Vel,  July  I'l.  I'-l''- 

''"JStewuil    ('.   Kuhu,   11  Wall.,  1'.I3, 


§:!S.] 


rNccNs'rrrrTioNAM'i'v  oi'  Li;(;isi,Ari(iN-. 


207 


villi  ftii(jrantc,  md  iiowluin  rmxitnlc  is  well  recoLfiii/oil  Ijy  interna- 
lioiial  law.^"*  But  no  rule  of  law  or  lojrflc  can  sustain  tliu  theory 
which  allows  self-governnu'iit  (o  relinijuisli  constitutional  rights 
while  it  denies  it  in  all  otlier  respects,  either  within  the  State  or 
liy  representation  in  the  national  legislature.''^'"  The  Reeon- 
slniction  Acts  must  ('onseciucntly  be  condeniiuMl  as  miconstitu- 
tioiiiil,  founded  on  force,  not  law,  and  so  tyrannical  as  lo  iiuperil 
die  lilierty  of  the  entire  nation  should  tliey  be  recognized  as  bind- 
iii;^-  precedents. 

There  is  mncdi  more  support  for  the  conduct  of  both  liousos  of 
('oneness  in  refusing  admission  to  tlie  delegations  from  the  Southern 
States  till  after  the  ratilication  of  tiic  new  amendmentvS  and  the 
if-iiKiking  of  their  constitutions.  In  action  of  that  character  nei- 
ther house  is  bound  by  rides  and  limitations  such  as  liedge  tlieiii 
ill  wlien  enacting  laws.  'J"hc  jurisdiction  is  expressly  vested  in 
their  uncontrolled  discretion.  And  few  legislative  or  administra- 
tive, not  many  judicial  ollicers,  feel  tliat.  in  determining  upon  a 
(liscn'tionary  act,  tliey  are  bound  to  follow  rules  of  law  whieli 
ciiuiiict  with  their  views  of  public  policy. 

iliere  remains,  however,  anotlu'r  and  broader  view  of  the  entire 
(|uesiion.  The  experience  of  eiglity  years  had  jiroved  that  there 
was  need  of  an  alteration  of  our  Federal  system  to  create  citizen- 
ship of  the  United  States,  and  give  to  those  who  possessed  it  rights 
which  the  States  could  not  destroy,  and  which  should  be  under 
tiic  protection  of  the  Supreme  Court  of  the  United  States.  Few 
hvi'   who    would   now  revoke   from   its  jurisdiction   the  power  to 


TidT:  Hayinoinl  r.  Tliomiis,  HI  V.  S, 
712,  714,  715  ;  ijuoted,  supra  over  noli' 
1.S7. 

'-'"'  Eliihiustimo  v.  Ilcdri-ci'liutid,  1 
K  iMii|i  r.  0.,  ;tltl,  300,  ;ti;i;  where  this 
II  I  im  was  iipplli'd  to  i-i'licvc  n  niili- 
•  !  \  olllci'i'  from  iiriliility  for  nil  net,  in 
■■■  i"iiiiu(>n'd  forolKii  coiinlry  not  pro- 
l'''ii  d  I'rom  IdiJi  liy  !\iiy  pro\iKioii  of 
ii  I'ohstitution,  nllhounh  open  lio^tili- 
ti'>s  lind  I'casi'd  in  tlio  viidnity,  and 
i!m'  n.iliv(>  courts  wi'ro  open  at  llii' 
line'.  William  LawriMicc  o'  Uliio 
il.  iini'd  iiutliority  for  llio  Kci-onslruo- 
tiiiii    Icglsliitii.n    HiidiM-    tliiH    maxim 


(CoiiBroHsional  Ctlolio,  2d  bi>8s.,  39th 
CoMK.,  p.  10H3).  Si'o  also  tlie  t.po(>ch 
of  Slii-llaharser,  quoti'd  liiy  Ihiiiuing, 
Thi>  Couslitiition  in  RcH-onsinulion, 
Pol.  Sc.  Quart.,  vol.  ii.  p.  TiiKS ;  and  tht> 
opinion  of  Aliorni'y-(T<'ni'rHl  E.  B. 
Hoar  in  Uic  Weaver  Casts  W  Op.  A.  Ct. 

■•i"'  .\eeording  to  The  llepuMie  of 
Kepuhlies,  4lh  >'il.,  p.  4'2(! :  "  Thaddeus 
Sto\4Mis  said  llu're  were  only  nvo  men 
in  all  (Vmi^ress  wlio  agreed  that  tlie.so 
matters  were  constitiilional.  'In  all 
lids  buHiiu'ss.'said  lie,  •  weacloulsido 
of  the  Constitution.'" 


•2{\H 


UKCONSTIIL'CTIOX. 


[I'llAI'. 


iiiuiul  tlio  ad  of  11  Statu  a-i  well  as  tin;  National  covurmiKMit,  wliich 


takes  lir,..l 


lllCll  V,  Hi' 


properly  witliout  iliu'  jiioix'ss  of  law,  or  wliiiji 


estahli.'lu'S  liu'i|iiallly  liy  statute. 


TIk^  coiidiiioii.  too,  of  tlie  slav't'.s  amoiirr  tlieir  former  mast 


ers 


(leiuaiKk'il  some  iiit(U'positioii 


for  th( 


pr 


iteelion  ;  and  history  i 


V  I  Ills 


taiiirlit  that  no  class  with  the  exclusive  right  of  government  ciiii 
refiain  from  legislation  unfair  to  those  who  are  disfranchised. 

That  a  period  of  prohation,  or  a  gradual  admission  of  the  frccd- 
mea  to  tlu'  right  to  vote,  would  have  l)i;en  hetter,  few  can  doiiljt; 
but,  after  Lincoln's  death,  it  semned  to  the  most  careful  students 
of  the  subject,  that  the  choice  was  peremi)t()ry  between  immc(li;itt' 
nt  for  all  or  permanent  disfrancliisemcnt.  wiliiuiit 


ifr 


entranclnsenii 


hope  of  a  future   right   for  any.     The  unwisdom  of  tin;  (lis 
ehisemenl    of  the    leadei's    of  the  South  is    most  ap[iai'ent. 


when  we  cons 


ider  that,  after  five  years  of  civil  str 


lie,    Ul    \\lllr|l 


so  much  blood  and  treasure  was  wasted,  the  victors  did  n 
mand,  as  an  atonement,  the  sacrilice  of  a  single  life  not  destio 


'Jt 


in  battle,  or  for  a  violation  of  the  laws  of  war:  and  romenilwr. 
not  onlj'  the  decimations  in  Rome  and  the  guillotine  in  Fraiicu, 
but  the  explosion  of  the  Sepoys  by  the  ICnglish  in  India  less  than 


ten 


yeai-: 


b(d'( 


and  the  militaiv  exct'Utions  in  South  and  Central 


America   to-day;   their  magnanimity  seems,  indct'd,  witliout  a  ] 


):u- 


dlel.      'J'he  South  failed  in  an  attenuit  to 


leconiplisli  a  i-evoiutieii 


tl 


le  security  of  slavei'v.      Their  failure  was  f( 


ved  bv  a  : 


ccssfid    revolution    et'l'eeted   by  the    Ncrth,-"-  which  destroyed  ihi 


le  eanlcer  in 


institution  tlial   had  been  tl 

ceme!ited  the   Iniiju  as  to  make  it  str( 


th. 


loily  [I 
d 


:)lit 


ic,  and  so 


■onger  and  more  ijeneliiial 
than  before.  At  the  start  of  secession,  the  Southern  statesiaeii 
aniiouiieed  that  tliev  would  never  retuiii  without  a  icconsi ruction 


>f  the  r 


( )ii   their  return,  i\\ry  found 


that 


lion 


had 


brouglit  to   j)ass.      -And   their  children   now  aihiiit 


a  reconsti'iic- 
I, 


that  what  they  obtained  was  better  than  what  they  scnight.-" 


-"■-' Hoc  lliiiiic,  I'diiiilardovoriiiiLOiil,  tliitt   iduIiI  Ih'  ni.-iili',  niid   li.v  Cox,  in 

II.  •i4ri.  TlirncDi'i'iulcH  of  Fi'dcral  Li'ijislatimi. 

^O''  Siiprd.  §  3(1,  iidli'  21.  The  liiltcr  IkioU  hIiows  nioro  iip|Jii'ii:i- 

'-'"*  Thconly  jiislorii'sor  lli'cdiistnii'-  turn  of  tlie  cxtriiordlui'ry  iiilliii'in'iMif 

lion  nr(' by  liliiini',  ill  Twc'iiiy  Yciirs  in  Tli.-tdilcus  Sli'vcii.s    upon    tlic  liclinii 

Cniiijrcss,  vol.   ii,  wliich  conldins   tli(!  taken.      A    bitter    nrcoiinl    of    !-'i.ai' 

best  (IcfcMi f  llii!  lictioii  of  C'oiit^'rcHS  (if  the  evi'llts,   written  fi'diii  I'l     <''in- 


^ :;:..] 


SKAT  or  suvi:i;i:i<;ntv. 


2o!> 


t; ;{!».    S«'i(»  of  Sovoreiffuty  in  the  Unit«Ml  States. 

Acn.iiliiiL;'  til  till'  iloctiiiics  of  jiirispnidciii'i;  wliicli  luv  usually 
ai  rpiiil.  iIhtc  is  a  Hovereign  jiower  in  every  form  of  goveninieiit, 
iiii;;[i;ilili'  of  eoutrol  l)y  liiw,  every  aet  of  whieli  lias  legal  eilieacy.' 
TIr:  siiiiiidiH'ss  of  this  position  has  in  later  years  heen  iiiipiijriied,^ 
iiml  the  wrilei'  lias  exjiressed  Ills  (Hiiuioii  on  thcsnhject  in  another 
])l;u'(.'.''  Tile  (jnestion,  however,  wliicli  is  more  alistiact  tiian  jirae- 
tic;il,  seems  to  belong  lather  to  tlie  domain  of  iinis])iii(lenee  tliau 
to  thai  III'  constitutional  law,  and  it  will  not  lie  discussed  in  the 
lniMiit  woik.  I'nder  its  iiilhieiice,  hi^fore  the  Civil  War,  the  dis- 
liplisiif  tiie  sciioolof  extreme  State  rigiits  argued  that  because  the 
•si'viral  States  were  termed  sovireigii  their  powers  were  illlmit- 
:ilili',  and  includeil  tlic  rights  of  nullilication  and  seei'ssion.^  Sim- 
ilarly iuiluenced  since  the  restoration  of  jieace,  later  wi'iters  have 
seciiiiil  III  contend  that  there  are  now  no  limits  to  the  powers  of 
till'  1  .'liied  States,  except  the  express  prohihitious  in  the  Consti- 
tiitiiiii.''     Ivich  of  these  dogmas  is  without  sujiport  in  precedent. 

Tlicrc  ai'e  certain  powers  which  are  the  usual  attributes  of  sove- 
ri'ltjiily  and  these  are  apportioned  between  the  United  States  and 


f.'ili'nil''  poiiil  of  vlow,  is  liy  Davis, 
Kis.'  anil  B'iill  of  tho  Coiifodciato  Oov- 
.Tiiiiwiit,  vol.  11,  pp.  718-70.').  Mc- 
I'li.Tsun's  History  of  thn  Ui-roiislnic- 
liiui  irf  in  no  st'iiso  ft  liistory,  but  a 
viTv  valualilo  ('oiiipilatiori  of  tho 
iliM-iiiiii-nls  anil  iinpoi-tant  furls.  The 
.■•liiili'nt  shoiilil  also  consiill  tin'  dr- 
liali'>  in  ('on(,'ress  as  well  as  tin'  nows- 
liapi  r:.  111'  (lio  liiin',  anil  tlii^  li'sliniony 
lalii'ii  iii'i'oni  till' .Joint  ConimiUoi'  on 
licriinslnii-liiin,  us  wi'll  as  thai  taUi'ii 
lii'i'iinwi  imniln'r  of  sulisi'qiionl  I'oiii- 
niiUi'i'sofConiiri'ss.  Tliori'ai'osi'vi'nil 
vajiialili'  iiionosniplis;  aiiioiif,'sl  flii-m 
Al'i'ii's  History  of  the  .•VilininistnUion 
iif  'iovi'iiior  ("liainhciiiiiH  la  South 
Canilina  ;  and  Thi>  liroolvs-Daxtor  War 
ill  ArUausas,  Ijy  John  M.  Darri'll.  A 
full  ami  impartial  history  eft  111' iii'iiiiil 
roniains  tn  In-  written. 

§;W.  '  (h-utiiis,  Jiis  Hi'ili  I't  I'aris, 


LlhiT  I,  c.  :i,  ('.7;  HoIjIh'S,  Works,  vol. 
il,p.  (i!t;  Austin,  Lectures  on  .Tuiispni- 
deiiie,  vol.  1,  p.  171  ;  Holland,  .Juris- 
prudence, chap,  iv,  2il  ed.,  jip.  .I!)-!;). 

iJIaine,  Early  History  of  Institu- 
tions, Iji'dure  xiii. 

"The  Suliji'ilion  of  the  State  to 
Law,  Anieriian  Law  Koview  for  IbHO, 
II.  51',). 

<  See  the  Kepublie  of  Ili'pul.lirs,  liy 
H.  .J.  Sat,'e;  Slephens,  Coiislitutioual 
View  of  the  War  lietwem  the  States; 
Calhoun's  Works;  Davis,  Uise  and 
l'"all  (if  the  Confederate  (Joverniiieiit, 
vol.  1,  and  other  autliorilies  cited  iu 
this  chapter,  miprii. 

''  See  John  C.  Hiird,  The  Tln'oiy 
of  our  National  I'^xistcnco;  and  ii 
pamphlet  by  the  sanio  author.  I'onie- 
roy,  Conslitiitioiial  I..HW ;  Tiedeinau 
on  Coiistitutioual  Law. 


270 


its  wislii's.  i 


NATCliK    or    TIIK    CONSTITrTKlN.  [I'll  .\|'.  ;|. 

Iiiit  till'  liiiiits  ol'  (Mcli  ;nv  jircsciili' ' 

fi'tain  p  iwiii's  u!i!h;, 

)'illi.'     'I'Ik'    uliimatu   rij^'hi  of 

Ikut.H'I.s  ti)  iirconiijlisli  li  l,m11v 


tlii'ir  componunl  iiiciiihi'i-s." 
liv  the  I'\m1cim1  ( '(iiislitutiiiii ;  mid  llicrc  aru  cf 
tlial  iiistninii'iit   w  iilidraws  t'roiii 

soveivif^iily,  wliicli  imm  ii'iiiovc  a.,  ./.m.v.o  i..  .i.  v,w.,n,.,oii  i.  ^.un 
it  I'xists  at  all  in  tiu^    I'nitcd  Status,   rests  in  tliu 


us  wisiii'S.  11  11  I'XisM  ill  ail  111  iiii^  I  iiiu'd  r^iaius,  rt'sis  in  tlic 
Ijedplu  (if  tiireo-fouitiis  of  tlie  several  States  acting  tlirounii  tlitir 
legislatures  or  conventions  with  tlie  previous  consent  of  two-iiiirds 
of  liotli  houses  of  Congress,  wlio  may  anieiid  the  I-'ederiil  Cmisii- 
tution.'*  IJut  even  they  are  forhiddeii  to  deprive  any  State,  with- 
out its  eonsent,  of  its  ecpial  suffrage  in  the  Senate.'-* 

Jj  40.    S«>v«'r»?iB:ii  Powers  <»f  tlic  United  States  in  Oeiieral. 


'I'll 


1' 


vei'S  of  the  I'liited  States  are  divided  into  two  ci; 


those  exercised  lievond  (heir  hoi'dcrs  and  those  exercised  will 


III! 


their  territorial  jurisdiction  ;  and  these  agai 


sul 


in  art!  sulidividcd  into 


two,  th 


uitliin  the  Teriilories  and  the  District  of  Cohiiiiliia  aiiil 


those  within  the  several  States.       In  all   external    rclati 


111 


transactions  with  foreign  nations,  the  sovereignty  of  tiu;  rnitcil 
States  is  al)soliito  except  in  so  far  as  it  is  limited  hv  the  exiiri'ss 


language  and  implied  restrictions  of  the  Constitution.  That  iii- 
striinicnt  expressly  grants  to  Congress  the  powers  to  regulate  coiii- 
nierce  with  foreign  nations,  to  regulate  the  value  of  foreign  coin, 
to  deliiH!  and  punish  piracies  and  felonies  committeil  on  (lie  ]ii(;li 


seas  and  otYen'ses  ayfainst  the  law  of  nations,  to  declare  w; 


J- rant 


lettei-s  of  marque  and  reprisal,  and  to  nii.ke  rules  coneerniii<,'  cap- 
tures on  land  and  water;'  to  the  President  the  j)Ower  to  receive 


ain 


hassadors  and  other  public   ministers;^   to  the    i'rcsideiit 


ami 


»  M.Cullocli  r.  llaryluiKl,  4  AVhcii-       Co.,   1,")S  U.  S.  (Ull,    fili,-) ;   llaim',   Th« 
t.on,  ;U(i,   tiri^O'i;  Colien  v.  Vir;,'inia,      (}onci']iti()n    (if    .Sovcieih'niy   iiml   its 

I     Intcnmtloiial    L.w. 


C   Whi'nton,   2(11,  ;iH0-;iS2 ;  Ti'iiiicssco      IiiiportaiH 


V.  Davis,  100  r.  S. 


272:  I'olloik       .Tiiri 


al  Sociclyl'apors,  iHr,',  1N,-|M,|i|i. 


V.  Farini'iH'  Loan  and  Trust  V.i 


V.  S.,12',(, 


,'').-)(!, 


1.")"       2(1,  It ;  Dii-cy,  Law  of  thi'f'oiu'tilutidii. 
pp.  l:t7-II0:  Fdst.or,  Tlin  Siili,ji'i'tiiiM 


and 


(>)nKtiMitioii,  .\rliclo  I,  Soclioiis  !(       of  tlio  Stale  to  Law,  .Viii.  Law  lli'viow 
10.  foi- 188(1,  p.  .'ill). 

Constitution,  Article  V;   Callioun,  'J  Const  it  u  lion,  Arliclo  V, 


Worlis,    vol.    V,    p.    3i>:    Mr.    .Tustii 


§■10.   1  Coustitiition,  Arlicli'  I,  Sc 


Uradli'V,   in   Hans  r.    Louisiana,    I'M      tion  S. 
V.  ,S,  1,   11  ;  Chief  .lust ice    Fuller  in 
rollooU  I'.  Farmer's  Loan  and  Trust, 


Constitution,  Arlirle  II,  Scctioal! 


■I. 


s(ivi:i;r.i<;N   r<i\\i;i!s  ok  tiik  i-xitki)  statks. 


u 


>(ii;itc  tlic  power  to  itjipoiiit  iimliiss.iilois,  ollur  |iiil)li,'  iiiliiislci's 
iiuil  (diisiils;  ami  to  lliu  i'rcsideiit  mid  Iwo-lliiids  of  tlm  Sciialo'iH 
|ilrsrlit  till'  powiT  lo  lllilki!  tI■(■ati(^■<.■''  It  ex  |ilcs.sl\  forhiils  tlii'  si-v- 
rliil  Sliili's  to  (liter  into  iiliy  tli'iity,  alliiuiee  of  colifeilenitioii,  to 
},friiiit  Icttiu's  of  iiiai'(|iie  ami  I'eprisal,  ami  without  the  consent  of 
('(iiii,M('.ss  to  lay  any  imposts  or  duties  on  impoits  or  exports,  except 
wluit  may  lie  ahsoliitely  necessary  for  exc;ciitin;^'  llicir  iiispeclioii 
liiws.  lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war  in  time 
(if  peace,  ciilcr  into  any  atfiecniciit  or  compact  with  anollit:'  State, 
(ir  with  a  foreif^n  power,  or  cnyan'c  in  war,  unless  acliially  invaded, 
111-  ill  such  imminent  daiigcr  as  will  not  admit  of  delay.'  It  has 
III. '11  said  that  in  their  transactions  with  forciirn  nations  and  action 
wiiliniit  their  own  territorial  limits  the  riiited  States  have  all  the 
]MiWers  usually  exercised  liy  sovereigns  which  the  Coiistitulioi: 
(li)(!S  not  expressly  wit  hold.''  Except  in  so  far  as  they  are  ex- 
pressly inhihiled  hy  the  Constitution,  the  I'nited  States  liavt?  ali- 
sdlule  and  exclusive  sovereignty  over  the  Distri(!t  of  Coliinihia '' 
and  the  Territories."  'I'heir  full  jurisdiction  over  the  Tcrriiorics, 
aliliDUgh  formerly  denied,**  is  now  iirmly  estalilishcd." 

The  (^xtent  of  the  jurisdiction  of  the  rnited  States  within  the 
Stales  has  heen  a  (juestion  of  more  dispute  and  dinicnlty,  Imt  is 
iiiiw  settled  hy  repeated  adjudications.  The  two  governnicnts, 
Stale  and  Xational,  each  exercise  their  functions  side  hy  side,  with 
a  far  iiion^  extensive  range  of  action  in  the  former  iIkiu  in  llu; 
latter:  hut  when  they  do  come  into  conllict  the  former  has  to  yield. 
It  is  still  true  in  suhstanee,  as  said  by  .Jefferson,  that  they  coiisti- 
tutu  "co-ordinate  deiiartments  of  one  single  and  integral  whole;"' 
the  foniier  having  the  power  of  legislation  and  administration  in 
affairs  which  concern  their  own  citizens  alone,  the  latter  over 
whatever  concerns  forcitrners  or  citizens  of  other  States.      And  tlu! 


■'  Coii-lilmioM,  .Vrlicli'  II.  Section  '2. 

*  Ciiiistiliiliiiii,  Ai-ticlr  I,  Scclieii  ID. 

'  See  In  iv  Ne!i(,'l(>,  i;i.".  T.  S.,  1,  St.  S.^i ; 
Jiiiifs  r.  V.  S.,  i;i7  IT.  K.,  202,  2I'2; 
C'liac  Cliaii  Till^•  i'.  V.  S.,  1;10  U.  S..  fiSl, 
i»'i.  I'l'H". ;  l''(in«  Yun  Ting  r.    U.   8., 

till  r.  s.,  mis,  7o.">,  700,  7ii,  712,  71:), 

Miioi.Ml  inim;  Eliiu  v.  V.  S.,  142  U.  S., 
651.  r,r,',i. 

'■  C(iiif.|.itiiti(iM,  .Vi'lielc  I,  S(jotiou  8. 


'  ('<iM«tiliiti(iii,  .\rli('leIV,  Sei'lieii  '.i. 

«  Dro.l  Scott  r.  S.iii.lfonl,  H)  II. .w. 
H',i:i.  i:!2~4 12.     Sco  iiifnt. 

•■'  I!i-yn.il.ls  r.  U.  S.,  OS  f.  S.,  145; 
Jlinjiliy  r.  Kiiinscy,  114  V.  S.,  IT); 
Canniiii  r.  V.  S.,  IK!  V.  S,  'hi;  Davis 
i:  H.'asou,  i:i;i  U.  S..  ;):!.);  .M.iniion 
Cliiircli  r.  U.  S.,  13G  U.  S.,  1 ;  s.  c.  140 
U.  S.,  OCi.');  s.  c.  ns  V.  S.  V.  M.amon 
Chiucli,  150  U.  S.,  145.     Sco  I'li/ra. 


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33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


■^ 


XATUIIK    OF    TIIK   COXSTITUTION. 


[('It.Vl'.  II. 


usual  simile  is  tluit  of  the  sol-ir  system,  with  ii  pnnniarisDii  of  llie 
Unitcil  Stitcs  to  the  sun  and  of  the  Stati'S  to  the  pliiuels,  cacii 
moving  in  its  ri'speetive  oriiit,  a  deviation  from  whicli  hy  any,  if 
uni'heciied,  woidd  bring  destruetion  njion  tiie  whole.'" 

Witliin  the  sjihei'i'  of  the  powers  vested  in  them,  the  United 
States  aic  supreme."  Every  State  law  or  ollieial  action  in  con- 
iliet  ■\\itii  an  act  jiassed  in  exeeution  of  a  ])ower  of  tlio  I'nited 
Slates  is  void.'-  And  there  are  no  limits  upon  the  action  of  the 
I'nited  S;  itcs  in  the  immediate  execution  of  such  a  power '^  except 
tlie  express  iidiilntions  of  tlie  Federal  Constitution  and  the  im- 
plied condition  that  the  I'nited  States  can  do  nothing  which  ]iro- 
vcnts  or  materially  hinders  the  disciiarge  of  those  fun(.'tions  wliicii 
are  essential  to  the  existence  of  one  of  their  coini>o'.ient  States." 
Even  a  State  police  power  which  it  has  exercised  as  it  deemed 
necessary  for  the  protection  of  tlu;  liealth  or  morals  of  its  citizens 
nnist  yield  when  it  conflicts  with  a  powt:r  vested  by  the  constitu- 
tion in  the  I'nited  States."' 

The  L'nited  Stiites  are  a  government,  and  consequently  a  corpo- 
ration capalde  of  contracting  to  the  extent  of  their  powere  of 
action  '''  and  of  suing  to  enforce  their  rights  '"  in  the  absence  of 


"  Till-  iNirlicst  iipo  of  this  siniili' 
known  1o  Uio  writer  wns  liy  Jolm 
Dicliinsoii  in  thi^  Foili'ral  Convi'iitioii  : 
"  Heconiimii'il  till!  iiroiiosi'd  ii.'itiimal 
system  to  (lie  s-oliir  system,  In  wliloli 
tlio  Stales  were  i\w  planets  and  ounht 
to  lie  li'ft  to  niovn  freely  in  their 
]iro|er  orl)lt8"  (Madison  Papers, 
Elliot's  Doliivtos,  2d  ed.,  vol.  v,  p.  IfiS). 

"  M<Culloel\  V.  Maryland,  i  Whea- 
tim,  aifi;  Lo,:,'an  r.  TT.  S.,  114  V.  S., 
2('..1;  In  tln^  matter  of  Quarles  l.W  X'.  S., 
5;)2;  In  till)  niattorof  Pebs,  158  U.  S., 
HCA. 

"  Constitution,  Article  VI ;  Tarblo's 
Case,  1:1  Wall.,  111)7,  407;  Tenni-ssee  r. 
Davis,  100  U.  K.,  257,  203;  7Cx  pnrtc 
.Sieliold,  100  U.  S,  :i71,  MHO;  (lulf  C, 
A  S.  Ky.  Co.  1).  Ho(le^•,  158  U.  8.,  !)8, 
104. 

1^  McCiilIoch  V.  Marylnn<l,  1  Wliea- 


'»  Lane  County  r.  OroKon,  7  Wall, 
71 ;  Day  r.  Tho  Collector.  11  Wall., 
113;  U.  S.  1'.  Kailroad  Company,  17 
Wall.,  322;  I'olloi  k  r.  Farmers'  Loan 
and  Trust  Co.,  157  V.  S.,  429;  infra, 
§  41  and  later. 

''■  Morpin's  Steamsliip  Co.  i'.  Loul- 
Hlann  lioiird  of  H^  alth,  118  U.  S.,  155, 
404 ;  New  Orleans  fias  Li(;ht  Co.  v. 
Louisiana  Lifjlil  and  Ileiit^  Proiluc- 
Inn  Co.,  115  U.  S.,  0,50,  001 ;  Leisy 
r.  Hardin,  135  l\  S.,  100;  Oult  C.  & 
8.  F.  Ry.  Co.  V.  Helley,  138  V.  S.,  M, 
104. 

i«  Constitution,  Artlele  I,  Seelioa  8, 
eouiludint?  (dause;  Chief  Justien  Mar- 
shall in  U.  H.  r.  Maurice,  2  Marsliall, 
1)0,  10!);  U.  S.  V.  Tingey,  5  Peters, 
115;  IT.  S.  1'.  Bradley,  10  Peters,  311 

"  In  re  Dol.s,  158  V.  S.,  504;  I'.  8. 
r.  Iluphos,  11  How.,  552;  U  8.  v.  San 


ton,  310 ;  In  tho  matter  of  Debs,  158      .laelnto  Tin  Compauy,  125  U.  8.,  273, 
V.  8.,  504.  279. 


HI-] 


STATE    SOVEUEIGNTY. 


27:1 


any  stiitutory  prohibition,  although  without  express  stiitutory  lui- 
tliiiiitv."  Tiiere  is  a  peace  of  tlie  United  States  as  well  as  a  peace 
iif  I'licli  individual  State.'"  The  United  States  have  tiie  power  to 
[iidvidf  hy  law  for  the  punishment  of  every  attempt  to  impede  the 
ox('n'is(!  of  any  of  their  functions-"  or  to  deprive  any  of  their  citi- 
vcii^df  any  riylit-'  which  is  guaranteed  hy  the  Federal  Constitution. 

••  riie  government  of  the  United  States  ma}-, by  means  of  i)hy.sical 
fdivi'.  exercised  through  its  oflicial  agents,  execute  on  every  foot 
(if  American  soil  the  powin's  and  functions  that  helong  to  it. 
Tiiis  necessarily  involves  the  power  to  command  obedience  to  its 
laws,  and  hence  the  power  to  keep  the  peace  to  that  extent.*'  ^ 

"  Tlie  entire  strength  of  the  nation  may  ho  used  to  enforce  in 
any  p;ut  of  the  land  the  full  and  free  exercise  of  all  national 
jiowcis  and  the  security  of  all  rights  intrusted  by  the  Constitution 
to  its  ciu'c."^  The  United  States  have  the  right  of  self-protec- 
lidii,  wliieh  includes  the  right  of  self-defense. 


§  41.    State  Sovvreipnty  niid  State  Ititrlits. 

Tiiu  several  States  are  still  called  sovereign  in  some  opinions  of 
till!  ciiurts '  as  well  as  common  i)arlance  ;  but,  as  has  been  shown, 
liny  ;iie  not  sovereign  within  the  definition  given  to  the  term  by 
the  jurisprudents.^  They  have  none  of  the  rights  of  sovereignty  in 
transaclions  with  foreign  nations."  They  possess  but  a  single 
power,  the  right  of  equal  suffrage  in  the  Senate,  of  wliieh  they 
cannot  be  deprived  by  three-fourths  of  the  membei's  of  the  Union,* 


i«  Tliiil. 

"Kx  parte  Slebold,  100  U.  S.,  371. 
31)5;  In  rn  NongU",  135  U.S.,  1,  (19; 
LcLinii  V.  U.  S.,  114  IT.  S.,  2r,3,  295;  In 
re  ()ii:iilos,  1.58  U.  S.,  53'2,  535. 

'-'  McruUoch  V.  Maryland,  4  Wheat. 
310, 117.  lis  ;  U.  S.  1'.  Marinol.l,  9  How., 
M\:  Ex  jinrte  Siobolil,  100  U.  S.,  371; 
AV/MWf  YarbrouRh,  110  U.  S.,G")1,G58. 
Sci.MiiiisuliHoquont  chapter  upon  the 
Implii'il  Vinvors  ot  ConRross. 

-'  V.  S.  V.  Ciuikshnuk,  92  U.  S.,  512, 
552;  U.  8.  r.  Coombs,  12  Petors,  72, 
7S;  I'.jc  parte  Ynrbrough,  110  U.  S., 
fi51;  r.  S.  r.  Wnddell,  112  U.  S.  76; 
LoRim r.  V.  S.,  144  U.  8.,  203.    Soo  the 


Bubsptiiient  chapter  upon  the  Implied 
Powers  of  Congress. 

•■"  Kx  parte.  Siobold,  100  U.  S.,  371, 
395,  p(  r  Mr.  Justico  Bradlej-. 

-3  Mr.  .Tustlco  Brewer,  In  re  Debs, 
158  U.  S.,  5(i4,  582. 

§  41.  1  Mr.  .Tustiee  Bradley  In  Hans 
II.  LouUiaiia,  124  IT.  S.,  1,  21.  Cotupare 
tholanguagoof  Chief  Justice  Marshall 
In  Cohens  r.  Virginia,  6  Wheaton,  264, 
414. 

2  Supra,  §  39. 

«  Constitution,  Article  I,  Section  10 : 
Now  Hainpshiror.  Louisiana,  108  U.  S., 
7t ,  . .. ,  supra,  §  40. 

«  Constitution,  Article  V. 


274 


XATtritK    OF    TIIK    CONSTITITKIN. 


[CIIAP.  IF. 


Ami  tlii'v  Clin  nsu  no  powers  wliii'li  t^lash  with  tlie  exercise  of  miy 
vi'stml  l)y  till!  Constitution  in  tlu;  I'nitcd  Stiitt's/"  Their  jurisdio- 
tioa  is,  moreover,  liniite(I  in  otiier  ri'Sju'ets  l>y  llie  siinie  instrnniriit. 
Tiiey  are  foi-liidden  to  intert'eri!  with  tiie  foreign  rehitious  of  tiic 
Fnion  :"  ami  to  coin  money,  and  emit  hills  of  credit.'  riu'}-  ciiii- 
not  gr;iiit  titles  of  noliility,'*  or  estahlish  a  form  of  jfuvernniciit 
which  is  not  repnhliciin,"  or  assume  or  pay  any  debt  or  ohligiitioii 
incurred  in  aid  of  insurrection  or  rehidlion  against  the  I'liiti'il 
States,  or  any  claim  for  tiie  lo.ss  or  eniuiicipatiou  of  any  slave.'" or 
pass  a  hill  nf  attainder  or  rj-  pout  furfo  law,"  or  deny  or  ahriili^t' 
the  riglit  of  citiy.eiis  of  the  I'liited  States  to  vote  on  acuount  (if 
race,  i;olor  or  previous  eondition  of  servittnle,'- or  abridge  the  priv- 
ileges or  iniUMinities  of  citizens  of  the  I'liited  States,''' or  deny  to 
tlie  citizens  of  the  other  States  the  privileges  and  inununities  wiiii  h 
thev  allow  to  their  own  eitizinis."  or  authorize  sluvcrv  or  invnliiii- 


tai  isi'rvi 


tndi 


'pt  as  a  pniMshment  for  a  crime  after  convictiiiii.' 


irot'j 


or  deny  to  any  person  within  their  jurisdiclinn  the  eipial 
tion  of  their  laws."'  Tiicy  are  compelled  to  respect  contraitiril 
rights  ''  and  all  other  I'ights  to  ))ropert3\"*  i'hey  cannot  make 
anything  but  gold  anil  silver  coin  a  tendei'  in  piiynient  of  dchts. 
oi'  pass  any  law  impairing  the  obligation  of  contracts.'"  or  deprive 
any  jierson  of  life,  liberty  or  property  without  due  process  of  law.'-" 


'11 


ley  ai 


e  directeil  to  deliver  fugitives  from  the  jusliee  of  iiiioll 


State  to  tiie  executive  thereof  upon  his  demand.-'     'i'heir  ,  .)iiils 
are  ohligi'd   to  respect  the  [lublic  acts,  rci'ords  and  judicial  pni- 


eeedniu's  o 


f    the  other  States.' 


.\iid   thev  ai( 


lenahle  tn  tin 


jurisi 


sdicti 


)f  till 


Siipr 


■me  (' )urt  of  the    I'liitiid   States  in  .-a 


its 


by  other    States   of    tiie   I'liio 
States.'-^' 


I'oreiirn    States   and    tlie    I'liiled 


In  other  ies|)ects  ciieh  Stat(!  has  full  and  complete   jurisdictin 


'•  Suimi,  'jj  10. 

«  riiiidtitutioii,  Arliclo  I,  Soctlon  10. 

■  n.iii. 

'■'  Ihiil.,  Article  IV,  Section  4. 
'"  Iliiil.,  Fomli'entli  .Xmeiuliiiput. 
"  Iliiil.,  Aiiiele  I.  Si'ilicin  10. 
'-  Iliiil.,  Kil'teeiilh  Aiiieinliiient. 
'■'  lipid.,  Fourteen  Hi  Amendment. 
»  Iliid.,  Article  IV,  Soetlou  2. 


Iliiil.,  Thirloonlli  .Vincinli-.oiil. 
'  Iliid.,  Foiirteonth  Amciiil  iieiit. 


'"  Ibid.,  Artleie  I,  Seel  in 


10. 


'*  Iliid.,  Fourteenth  .\iiieiiiluieiil. 
1''  Iliid.,  Artlelo  I,  Sei-,iiin  10. 
■"'  Iliid.,  Fourteenth  .Vncndi'ieiit. 
■■'1  Ibid.,  Artiele  IV,  Seelioii  'J. 
■"  Ibid.,  Arlielo  IV,  Seeliii:i  1. 
■-•'  Iliid.,      Article      III,      Khventll 
Amondinenl. 


11.] 


STATK    S()Vi:i!KI(iNTY, 


:it) 


mm 


he  ald'ilmtes  of  soveruigiily  over  cveiy  tliiii<,'  iiiul  jumsoii 


uilluu  Its 


honli 


the  (iiiistiliitidii  nor  \)V 


'I'lu;  powers  not  <lcU'jfiUi'(l  to  tlic  Stiiti's  ]>y 
voliil)ittMl  by  it  to  tlio  States  an;  reserved  to 
till'  St  lies  respectively,  or  to  tlie  jx^ojile.""''^  1'lie  iloniuin  of  a 
State  ineliules  llie  I'egulation  of  the  doniestie  7-elations  of  its 
lilizeiis.  iiieluiling  marriage, 


(livoree,  ami  other  sexual  relations,^' 


adoption  anil  the  rigiits  of  {)arents  over  their  children,^  education,^ 
iiiliiiitanee  and  tlie  acuinisition  of  property  within  its  horders,  by 


lllrSt   O 


devise,  ineludintr  the  riidit  to  forbid  a  devise  of  land 


tlnriiii  to  the  Tnited  Statt^s;^  the  title  to  real  and  personal  i)ro- 
pcitv  within    its    jurisdietion  ; -•'    all    its    internal    eommerie   and 


iiiaiinfiutnres,  inidudinL 


th 


prohibition  of  the  manufacture  ( 


f  an 


arii'li'  intended  for  export,'"*  and  full  eontrol  over  monopolies 
of  manufacture,  eoninurce  and  other  business  which  are  eonlined 
within  its 


limits;^'    and    th 


)se    immerons    neeessary  regulation* 


I'lir  the  preservation  of  iiealth,'''-  property,'^' and  morals,'''^  the  main- 
tciiaiice  of  order,'^''  and  the  adjustmi'nt  of  rights  to  projiertj-  held 
ill  iiiiiiiiion,'"''  which  are  usually  classilied  under  the  i)oliee  powers. 
Maili  State!  has  absolute  control  over  the  structure  of  its  internal 
i,'n\criiincnt  and  the  right  to  local  self-government  without  in- 
terference by  the   rnited  States,  provided   that   it  preserves  the 


■-'•  lliiil.,  Tontli  Ami'ndiiH'nt. 

'^  Hum  V.  lliiiil.  i;U  U.  S.,  AppoiKHx 
rlxv.;  Mii.vnard  i'.  Hill,  l'2r,  U.  H.,  I'.H); 
IVirc  r.  Alal>iiiiia,  llHl  V.  H.,  r>SS;  (iroi'n 
r.  Stiiti',  r>S  Ala.,  1!M);  s.  c.,  01)  Ala., 
2:11  ;  /'.'.r  pitrle  Kiuiicy,  3  Hiisjlios,  1 ; 
K.r/i((rt(!  l'iani,oi.«, 3  Wooils,  3(17;  Fran- 
cois i:  Stall',  !)  Tox.  App.,  144. 

•-"  III  rv  liiirnm,  13(1  U.  S.,  ."iHll. 

-"  llirldimi'au  -i'.  (^ity  Directors,  3 
Wniiils,  177;  Pi'Oplo  ex.  ril.  KiiiK  i'.  (ial- 
liitihrr,  1)3  X.  Y.,438;  ('i)iiiiumiwoal(h 
r  Di'iiis,  10  Weekly  Xr^  •  s  iTa.;,  1.">(1; 
Li'lii'W  I'.  lliunimcU,  KKi  Mo.,  5K1; 
Stall' crn/.  Gariii'r  v.  XlcCaiiii,  '.21  Ohio 
St.,  I'.IS;  Caiy  r.  Carter,  4S  Iiid.,  328; 
WanI  I'.  I'jooil,  -IS  Cal.,  3(1;  Clirisiiiaii 
r.  l!reiil;liaveii,70  J[isH.,477.  See,  how- 
ever, Clayliroiik  r.  City  of  Owonsboro, 
It!  I'eil.  11.,  'i!)?. 

•"  U.  S.  f.  Fos,  1)4  U.  S.,  315. 


•■»  U.  S.  V.  Fox,  04  U.  H,  31,->,  320. 

*'  Kiilil  r.  Tearsoii.  12S  V.  S.,  1,  20, 
21,  22.  Cf.  Pattersou  v.  Koutueky,  1)7 
U.  S.,  ,101. 

8>  Veazie  r.  Moor,  14  How.,  508,  ,".74 ; 
The  Slaughter  House  Cases,  1(1  Wall., 
3(1;  V.  S.  1'.  E.  C.  Kiiiglit  Co.,  l.-.(l  U. 
S.,  1. 

■"  Smith  r.  Alabama,  1-24  V.  S., 
4(15 ;  I'liwell  r.  Peiiusylvaunia,  1'27  U.  S., 
(178;  Plumley  r.  Commonwealth  of 
Mas.saeluisetts,  155  V.  S.,  401. 

*'  U.  S.  r.  Dewilt,  I)  Wall.,  41;  Pat- 
terson 1'.  Kentueky,  1)7  IT.  S.,  ,501. 

»•  Stone  I'.  Mississippi,  101  V.  S., 
814. 

^  The  Jamt's  Gray  r.  The  John 
Fraser,  '21  How.,  184;  Vanilorl.ill  ti. 
Adams,  7  Cowon  (N.  Y.),  349. 

*>  Wurls  V.  Iloaglaiul,  114  U.  S., 
GOO. 


NATURE   OK   TIIK   CONSTITLTION. 


[("IIAI-.  II. 


republican  form  and  does    not   inf/ingo   the    express   i)rovi.sions 
<if  tlie  Constitution.''" 

Tlio  Conatitution,  by  implication,  guarantees  to  eacli  State  its 
existence  .ind  the  ilischarge  of  its  governmental  functior.s,  witli- 
out  interference  by  tlie  United  States,  except  to  the  extent  neces- 
sary for  the  enforcement  of  the  powers  granted  to  Congress.  Even 
in  tlie  exercise  of  such  a  power  the  United  Stiitcs  cannot  impede 
any  of  tiie  operations  of  a  State  wliich  are  essential  to  its  cor- 
porate existence.^  Thus  tliey  cannot  tax  the  property  of  a  State,® 
or  the  salary  of  a  State  ofHcer,'"'  or  the  principal  or  income  of  State 
indebtedness ;  *'  nor  make  bills  of  credit  issued  by  the  U^nited  States 
a  legal  tender  in  payment  of  State  taxes.''^  The  Constitution  also 
contains  express  guaranties  of  State  rights,  namely,  the  ri^lit  of 
each  State  to  two  senators  ■'^  and  at  least  one  representative,*'  and 
at  least  tliree  p.'esidential  electors  ■*''' ;  tlie  right  to  have  representa- 
tion in  tlie  House  of  Representatives  ^^  otherwise  apportioi -.'d  in 
.accordance  with  population,  unless  a  State  for  any  refisoii  exoj't 
crime  <lenies  the  rigiit  of  suffrage  to  any  of  its  male  inhabitants 
who  are  twenty-one  yeara  of  age,  and  citizens  of  the  United  States. 
except  for  crime  *' ;  tlie  right  to  an  apportionment  of  direct  taxa- 
tion in  aixordance  with  population  <* ;  the  ri'dit  to  appoint  the 
officers  of  its  militia,^"  and  to  train  them  accordbig  to  the  disciiiline 
prescribed  by  Congress;'*  the  right  to  rcH'over  fugitives  fniiii  jus- 
tice who  have  escaped  to  other  States;'"'  the  right  to  have  its 
public  act-!,  records  and  judicial  proceedings  respected  in  other 
States  ;^^  the  right  of  its  citizens  to  enjoy  the  privileges  and   iiu- 


•'"  Minor  v.  Happersett,  21  Wall., 
102;  Murphy  r.  Ramsey,  IM  U.  S., 
15,  41. 

■«  The  Ojllcrtor  v.  Day,  11  Wnll., 
113;  Laiio  roiinty  r.  Oregon,  7  Wall., 
71;  U.  S.  V.  Uailroail  Company,  17 
Wall.,  .S22;  Pollock  v.  Farnaof'B  Loan 
and  TruHt  O).,  I.'')?  U.  S.,  421>. 

•"  U.  S.  V.  Railroad  Company,  17 
Wall.,  322. 

<i  ThoColloctoni.  Day,  11  Wall.,  113. 

*'  Pollock  II.  Farmer's  Loan  and 
Trust  Co.,  1,57  U.  S.  129. 

*'  Lauo  County  v,  Oregon,  7  Wall., 
71. 


<;'  Constitution,  Article  V. 

"  Ibiil.,  Article  I,  Section  2. 

«5  Ibid.,  Article  II,  Section  1. 

"  Iliid.,  Article  I,  Section  2. 

*'  Ibiil.,  l''oui'teeuth  Amendment 

<»  Il)id.,  Article  I,  Sei'Uoii  2;  Pol- 
lock V.  FarmiT'B  Loan  and  Trust  Co., 
158  U.  S..  001. 

"  Ibid.,  Article  I,  Section  8. 

6')  Ibid. 

61  Ibid.,  Article  IV,  Section  2.  Tills 
has  been  held  to  bo  a  right  of  imper- 
fect obligation.  Commonwealtli  nt 
Kentucky  v.  Denulson,  24  How.,  fi6. 

M  Ibid.,  Article  IV,  Section  1. 


jit.] 


STATE   RIGHTS. 


277 


iiuiiiitics  of  the  citizens  of  the  other  States  where  tliey  sojourn  ; '-' 
tlic  rJLflil  of  territorial  integrity,  at  least  to  the  extent  of  protuction 
I'lnin  division  into  two  or  more  States  without  its  eonsent/''  and, 
iiccoiilint,'  to  some  authorities,  to  protection  against  consolidation 
with  other  Stiites  ^  or  the  cession  of  part  of  its  territory  to  for- 
(■if,'ii  Stiites  without  its  consent ;  ^  the  right  to  freedom  from  com- 
nicrcial  preferences  to  the  ports  of  other  States,  and  taxation  of 
its  exports  imposed  liy  the  United  States  or  the  States  from  wiiich 
tliey  are  shipped  ; '''  the  right  to  a  repuhlican  form  of  government, 
protected  hy  tlie  United  States;'^  the  right  to  exemption  from 
h  its  liy  citizens  of  other  States  or  foreign  Stites;''''  and,  finally, 
till-  iJLjlit  to  take  part  in  framing,  and  to  vote  upon,  amendments 
to  the  Federal  Constitution."" 

The  term  State  sovereignty  wa.s  a  misnomer.  It  is  associated 
with  slavery  and  secession ;  and  little  good  can  he  gained  hy  its 
use  in  the  controversies  of  the  present  or  the  future.  It  is  other- 
wise with  the  doctrine  of  State  rights  when  correctly  understood 
and  properly  applied.  That  had  its  origin  in  the  rescue  by 
Jefl'crson  of  the  whole  i  'ople  from  the  attacks  on  the  liberty  of 
the  press  which  were  perpetrated  by  the  Federalists,  and  aided  in 
freeing  the  Southern  tax-payera  from  the  rapacity  of  illiterate 
hlarks  supported  by  the  bayonets  of  Grant's  army.  Now  that 
the  whole  world  is  the  subject  of  a  struggle  for  a  readjustment  of 
tlic  relations  between  the  employers  and  employeil,  in  whicli  each 
calls  for  the  aid  of  the  organized  power  of  society ;  that  the 
rii;lits  of  land-owners  are  overhaided  and  attempts  made  to 
reconstruct  them ;  that  even  pereonal  property  is  not  exempt 
from  attack ;  that  the  change  in  the  condition  of  women  is 
accompanied  by  changes  in  the  institution  of  marriage  ;  and  that 
the  State's  aid  is  invoked  to  assist  in  solving  other  social 
problems;    while    the    preponderance  of   political    power    in    tlio 


•'■'•  I!ii(l.,  Arliclo  IV,  Section  2. 

"  Ilu'l.,  Artid.i  IV,  Section  3. 

'■'  Synopsis  of  Ipctiires  on  tlio  Con- 
Ptitiilion  of  tlie  United  States  lieforo 
till'  Sclidol  of  Liiw  of  Cornell  Uuiver- 
pit.v  liy  Ex-Governor  Daniel  H.  Cliam- 
lipilain,  ]).  32;  a  very  valuable  col- 
lOi'tioM  of  uotos. 


"  See  the  discussion  of  this  sub- 
ject under  tho  Treaty  Tower. 

"  Constitution,  Article  I,  Sections 
9  and  10. 

6«  Il)id.,  Article  IV,  Section  I. 

■*'  It)id.,  Eleventh  Amendment. 

«»  Ibid.,  Article  V. 


278 


NATfl!!'.    ()!••   TIIK   CONSTITrTION. 


[<IIA1'.  II. 


I'liit  ■(!  StLiti's  lias  iKissrd  to  till'  iiilml)it;iiit.i  of  a  jiortidii  of  tli,' 
co!i;i  IV  witli  (lilTL'iviit  anil  Ics*  vaiicil  m  ciijiiitioiis,  (liUVi'rnt  h.-.ihiU 
and  less  woultli  tlian  tliosu  of  llii' .section  wliicli  i.s  in  tin;  ininoritv; 
it  ii  of  tlio  utmost  innioitanco  that  all  e.\i)L'riuu'nts  in  logisiatidii 
slioiiiil  bu  oonllncil  us  far  as  possiiilo  to  tiie  coninmiiiiius  wlio  \vi,ii 
to  try  llieni,  and  not  forced  njioii  distant  and  rclnctant  Stuti's  who 
an;  oijpo.sed  to  any  cliantft;  in  tlii!  existing  older.  At  no  tiiiio  in 
tlic  history  of  tliu  I'nited  States  liave  tlu;  inaintenan  h;  and  incscr- 
valion  of  State  rights  been  more  needed.  And  the  mo.st  ini|]iiriaiii 
(leei.ion  of  till'  Supreme  Cotirt  since  tlie  jierio  i  of  reconstiiiciiou^' 
s]io\v.s  tliat  that  tril)anal,  as  at  present  constituted,  is  resolved  to 
iijiliold  ihem.'''-* 


"'  I'cillock  r.  Farmcre'  Loan  mid 
TnistCo.,  158  IT.  H.,  Cdl. 

"•'-  "  TIk.'I'o  arc,  iu()n'<>ver,  two  eon- 
sliliMMIuins  particularly  applicable  to 
tlio  federal  Ky>.t('m  of  America,  wliidi 
placn  that  system  in  u  vory  interc-sting 
poiat  of  view. 

"  First.  In  a  pintle  republic  all 
the  power  surri-ndered  liy  the  people 
Is  S'lliniltted  to  tho  ndminislrati'Mi  of 
u  sln^ilo  novi'rmnenl;  and  lie!  nsui'- 
patioiis  are  guarded  «,i{ainsl  hy  a 
divi-lon  of  thi^  (government  into  dis- 
tini't  and  separate  departments.  In 
the  i-oMiponiid  Ilepublii!  of  America, 
tlu!  power  surrendered  by  tlie  people 
I.s  lir  t  divided  lietween  two  distinct 
pivernments,  and  then  thi>  jmi-tior 
allotted  to  each  subdivided  anionn 
distinct  and  separate  departments. 
Hence  a  doulile  sec\irity  arises  to  tlie 
ri^hls  of  the  people.  The  difrer(<at 
troveniuienls  will  control  each  oilier, 
at  the  saino  time  that  each  will  b(! 
<-oiil rolled  by  il-elf. 

"Second.  It  is  of  Rreat  iniiiortance 
in  a  ii'iaiblie  not  only  to  cuard  the 
society  against  tlio  oppression  of  ii.s 
rulers,  but  to  guanl  one  part  of  th<> 
soi'iety  against  tlio  injustice  of  tho 
other  part.  Different  interests  neces- 
sarily exi.st  In  different  classes  of 
citizens.     If  a  majority  be  united  by  a 


cominon  interest,  the  ri^;lils  <if  the 
minority  will  lie  iiisc(  are.  There  ari' 
but  two  inclhods  of  providlii;;  aeaiii8t 
this  evil;  the  (uie  by  crcatim;  a  hIII 
In  the  community  indepcndcnl  of  tli'' 
majority  -that  is,  of  the  snciiMy  it- 
self; the  oilier,  tjy  comiu'cheuiiing 
in  Iho  society  so  many  separate  iks 
seription.-i  of  eiti/.ens  as  will  render  an 
unjust  combination  of  n  majority  of 
tho  whole  ver.v  liiiprobnble  if  not  liii- 
lU'acticable.  The  lir.it  method  prevails 
in  all  governments  possessing'  an 
hereditary  or  self-appoiuti'd  autlinril.v. 
This  at  b<!st  is  l)ut  a  ] precarious  se- 
curity; because  a  imwer  imlepenilinl 
of  the  soi-iely  may  as  well  es|ousp 
the  unjust  views  of  the  ifiajor  as  the 
rightful  Interests  of  the  minor  party, 
and  may  jiossilily  bo  turned  ng;iiast 
both  parties.  Tho  second  laetlieil 
will  b(<  cxemjililled  in  tho  feileral 
re[)ulilie  of  the  United  States.  Wliibt 
ail  aulhorit.v  in  it  '.vill  bo  derived 
from  and  dependent  on  the  f-ci-icly, 
the  socict.v  it.self  will  lie  broken  iiil" 
so  many  parts,  inler<'sls,  and  cU. -I's 
of  citizens,  that  the  rights  of  indi- 
viduals, or  of  the  minoilty,  will  he 
in  litll  '  daugi'r  from  interested  ee?';- 
binationsof  the  majority."  (Tliel\'d- 
eralisl,  No.  11. 


APPENDIX   TO   ClIAPTEH    II. 


AN   ACT  t'OXCKliNlN(i    AMKNS. 


SwTION  1.  lie  it  viiiwlfil  hi/  thi'  Si'iKitc  mill  lliiiixc  uf  Ri'jircsinilu. 
li.-i.-i  of  (lie  i'liiti'il  Stiilen  of  ^liiiiriiii.  ill  ('iiniiri'ss  ii.sxrinliii'd,  Tliut  il 
i-UM  In;  l.'iwfiil  for  the  ProHitU'ut  of  lliu  I'nilt'd  Sttiti'S  at  :uiy  lime 
ilniiiiir  the  coiitiiiuanee  of  this  net  to  urdi-i-  all  siicli  nlii'n.s  as  he  shall 
juili:(;  (hiiiircroim  to  thi'  iioacii  ami  safety  of  the  I'liileil  Slates,  or  sliall 
liMvc  reasoiialile  <:rouii(l8  to  suspect  arc  ooiieenieil  in  any  treasonable 
<ir  Sfcret  iiiaehiiiations  ajiaiiist  the  f:;overunieMt  thereof,  to  <lei)art  out 
<if  the  territory  of  the  I'niteil  States,  within  such  time  as  shall  he  ex- 
prcsscil  in  sueh  order,  whieli  order  shall  he  served  on  such  alien  hy 
(iijiveriuf?  him  a  copy  thereof,  or  leavin<j;  the  same  it  his  usual  abode, 
and  returned  to  the  olllee  of  the  Secretary  of  State,  by  the  marshal  or 
(itlier  i)er.son  to  whom  tlie  same  siiall  be  directed  And  in  case  any 
iiliiii,  so  ordered  to  depart,  shall  be  found  at  lai  ,'t!  witiiin  the  United 
Stales  after  the  time  limited  in  such  order  for  his  de[)arlure,  and  not 
iiaviii'.'  olitained  a  limin'  from  the  President  to  reside  tiierein,  or  having 
olilMincd  fciuch  liri'iiri'  shall  not  have  conformed  thereto,  every  such  alien 
hIi:i1I,  oil  conviction  thereof,  be  imprisoned  for  a  term  not  (exceeding 
three  years,  and  shall  never  after  be  admitted  to  become  a  citizen  of 
llic  liiited  States.  I'roriiliii  iihriii/.<i^  mul  Iw  it  fiirliiir  eiiiuieil,  that 
it' ;iiiy  alien  so  ordered  to  depiirt  shall  ])rovo  to  the  satisfaction  of  the 
I'lesident,  by  evidence  to  be  taken  liefore  siicii  person  or  persons  as  Ihe 
I'li'sidenl  shall  direct,  who  are  for  that  innjiose  hereby  auliiori/.ed  to 
aihniiiister  oaths,  that  no  injury  or  dnnjier  to  the  I'nited  States  will 
arise  from  siilTcvinji  such  alien  to  reside  therein,  the  President  of  the 
I  niled  Stales  may  grant  a  lirfiiirc  to  such  alien  to  remain  within  the 
I  niled  Slates  for  sucli  time  as  he  shall  judije  proper,  and  at  such  place 
as  he  niay  designate.  And  the  President  may  also  require  of  such  alien 
I'l  enter  into  a  bond  to  the  I'nited  States,  in  such  jtenal  sum  as  he  may 
direct,  with  one  or  more  sullicient  sureties  to  the  salisfaclion  of  the 
liorson  authorized  by  the  President  to  take  the  same,  conditioned  for 
the  good  behavior  of  such  alien  during  his  residence  in  the  United 

279 


280 


THK    ALIKN    LAW. 


[chap.  II. 


Stutca,  and  not  violiitin.<;  IiIh  licunpe,  which  licence  the  President  iiiuy 
revoke  wheuevor  he  shiill  think  proper, 

Si:<'.  2.  And  he  it  fiirlhi-r  enacted.  That  it  shall  be  lawful  for  \\k 
President  of  the  Tnited  States,  whenever  he  may  deen)  it  necessary  for 
the  public  safety,  to  order  to  be  removed  out  of  the  territory  thereof, 
any  alien,  who  may  or  shall  be  in  prison  in  pursuance  of  this  act ;  and 
to  cause  to  lie  arrested  and  sent  out  of  the  I'nited  States  such  of  those 
aliens  iis  shall  have  been  ordered  to  depart  therefrom  and  shall  not 
have  obtained  a  licence  iis  aforesaid,  in  all  cases  where,  in  the  opinion 
of  the  President,  the  public  safety  requires  a  speedy  removal.  Ami  if 
any  alien  so  removed  or  sent  out  of  the  I'niled  States  by  the  Presidcut, 
shall  voluiitiuiiy  return  thereto,  unless  by  permission  of  the  President 
of  the  riiiled  Stales,  such  alien  on  eonvietion  thereof,  slwll  be  impris- 
oned so  long  as,  in  the  opinion  of  tlie  President,  the  public  safety  may 
require. 

Six'.  ;5.  ^liid  III'  it  fnrllicr  ciiartcd.  That  every  master  or  commander 
of  any  ship  or  vessel  wiiieli  sliall  come  into  any  jxirt  of  tlic  I'liitcd 
States  after  the  first  day  of  July  next,  shall  innnediately  on  his  arrival 
make  report  in  writing  to  the  collcetor  or  other  chief  ollicer  of  the  cus- 
toms of  such  port,  of  all  aliens,  if  any,  on  board  his  vessel,  spccifyin;,' 
their  names,  aj|e,  the  iihico  of  nativity,  the  country  from  whieii  tlicy 
shall  have  come,  the  nation  to  which  they  belong  and  owe  alle;^i;mco, 
their  occupation  and  a  descrii)tion  of  their  i)ersons,  as  far  as  he  slialt 
be  informed  thereof,  and  on  failure,  every  such  master  and  coniuiaiider 
shall  forfeit  and  pay  three  hundred  dollars,  for  the  payment  whereof  on 
default  of  such  master  or  commander,  such  vessel  shall  also  be  luildcn, 
and  may  by  such  collector  or  other  ollicer  of  the  customs  be  detained. 
And  it  shall  be  the  duty  of  such  collector  or  other  oflicer  of  the  customs, 
forthwith  to  transmit  to  the  ofllce  of  the  Department  of  State  true 
copies  of  all  such  returns. 

Skc.  4.  And  he.  it  further  enacted,  That  the  circuit  and  district 
courts  of  the  L'niteil  States,  shall  respectively  have  coijnizauce  of  all 
crimes  and  otTences  against  this  act.  And  all  marshals  and  other  olll- 
cers  of  the  United  States  are  required  to  execute  all  precepts  and 
orders  of  the  President  of  the  I'nited  States  issued  in  pursuance  or  hs 
virtue  of  this  act. 

Skc.  "i.  And  he  it  fnrtlier  enacted,  That  it  shall  be  lawfid  for  any 
alien  who  may  be  ordered  to  be  removed  from  the  I'nited  Stales,  liy 
virtue  of  this  act,  to  take  with  him  such  part  of  his  floods,  chattels, 
or  other  property  as  he  may  find  convenient;  and  all  property  left  in 
the  United  States  by  any  alien,  who  may  be  removed,  as  aforesaid, 


AIM'KNUIX.] 


TIIK   SKDITION    LAW. 


281 


sliiill  III',  and  rcmsiiii  Biibji'Ct  to  lii.s  order  and  disposal,  in  the  same  nmii- 
m  r  as  it'  tliis  act  inid  not  lii'cn  puHsed. 

Sir.  (1.  And  !)(>  it  fiirllicr  fiimtcil,  Tliut  tiiis  net  sliall  coiitiniio 
aiul  111'  ill  force  for  iind  diirinfr  tlie  term  of  two  years  from  tlic  passing 
thereof. 

Approved  Jn:ie  2."),  1798.' 


TIIK   SKDITION    LAW. 

AN  ACT   IN   ADDITION  TO  THE  ACT  KNTITLED   "AN  ACT  FOR  THE 

rUNlSHMENT  OF  CEUTAIN  CHIMES  A(UINST  THE  UNITED 

STATES." 

Sr.tTioN  1 .  Jli;  it  enocli'd  by  the,  iSciiate  and  Ilniiso  nf  Rcpri'seutatirpx 
of  the  I'ltiti'd  Sldtcn  of  America  uhhcih^iM,  Tliut  if  any  persons  siiuU 
imlawfuUy  combine  or  conspire  together,  with  intent  to  op|)()sc  imy 
measure  or  nuasiires  of  the  government  of  ti\e  I'niled  Ktiites,  whicli  aro 
or  shall  lie  directed  by  i)roper  anthority,  or  to  im|icdc  the  operation  of 
any  law  of  the  United  Slates,  or  to  intimidate  or  prevent  any  person 
holding  a  place  or  ollice  in  or  under  the  government  of  the  United 
States,  from  undertaking,  performing,  or  execnting  his  trust  or  duty; 
and  if  any  person  or  persons,  with  intent  as  aforesaid,  shall  counsel, 
advise  or  attempt  to  procure  any  insurrection,  riot,  unlawful  assembly, 
or  cuiabination,  whether  such  conspiracy,  threatening,  counsel,  advice, 
or  alti'iiipt  shall  have  the  proposed  etl'eet  or  not,  he  or  they  shall  be 
ilociiii'd  guilty  of  a  high  misdemeanor,  and  on  conviction,  before  any 
cdiirt  of  the  United  States  having  jurisdiction  thereof,  shall  bo  punished 
liy  a  line  not  exceeding  live  thousand  dollars  and  by  imprisonment  dur- 
ing a  ti'iiii  not  less  than  sis  months  nor  exceeding  live  years  ;  and  fur- 
ther at  the  discretion  of  the  court  may  be  holdeu  to  find  sureties  for  his 
goiid  behavior  in  such  sum,  and  for  such  times,  as  the  said  court  may 
diieet. 

Sf.c.  2.  Atid  be  it  further  enacted,  That  if  any  person  shall 
write,  print,  utter  or  publish,  or  shall  cause  or  procure  to  be  written, 
printed,  uttered  or  published  or  shall  knowingly  and  willingly  assist  or 
aid  in  writing,  printing,  uttering  )r  publishing  any  false,  scandalous 
and  malicious  writing  or  writings  against  the  government  of  the  United 
States,  or  either  house  of  the  Congress  of  the  United  States,  or  the 
President  of  the  United  States,  with  intent  to  defame  tiie  said  govern- 
ment, or  either  house  of  the  said  Congress,  or  the  said  President,  or  to 

'Pruston's  Doeumcnts  lUustrutivoof  Amerieau  Histoi-y,  2d  ed.,  pp.  278-280. 


'J82 


vii:(ii\iA  iir.sor.fTiKNs. 


["'IIAI'.  II. 


Iiiiii;;  tin  111  or  lillicr  of  lliciii,  into  (•(>nt<iii|il  or  disrcpiito  ;  oi'  to  excite 
:i;^:iiiinL  tliiiii,  or  I'iliu'r,  or  any  of  tlicni,  tlir  lisitriMl  of  tliti  izoml  |i('i)|i|i> 
of  llic  liiilod  Stall's,  or  lo  stir  up  Hcilitioii  williin  tlif  I'liili'il  Miiti'M,  nr 
to  excite  any  unliiwfiil  cuinliiliatioiiH  liierein.  for  opposing  or  resisliiiK 
any  linv  of  the  I  niled  States,  or  any  aet  of  tlie  I'resiileiil  of  llie  liiiU'd 
Slates,  and  one  in  piirsuanci;  of  any  sneli  law,  or  of  tin;  powers  in  iiim 
vested  liy  tlii'  '■onstiliitiun  of  tlio  I'lilled  Statua,  or  to  resist,  oi>p()se,  oi' 
<lefeat  any  sin  li  law  or  act,  or  to  aid,  cncouni;.To  or  nliet  any  Im-ilile  di- 
siirns  of  any  forei^'n  nation  ajrainst  tiie  I'niled  Stales,  llieir  peoplt' oi' 
\lii^-  iineni,  tiieii  siicli  person,  lieinji  tliereijf  convicted  ttcfore  any  coim'I 
of  >ne  I'liited  States  imvinij  jurisdiction  tiu'rcof,  sliall  lie  ])unislieil  liy  n 
lici'  not  exceeding  two  thousand  dollars,  and  liy  iniprisonnieiit  not  ex- 
ceeding two  years. 

Si:c.  ;!.  Ami  he  it  further  ciutctcil,  mid  dcrlnrcil,  'I'liat  if  any  jier- 
8ori  Bliall  be  prosecuted  under  this  net,  for  the  writinff  or  ijublisliini;  any 
liliel  aforesaid,  it  slndl  lie  lawful  for  tlie  defendant,  upon  the  trial  of  tlic 
cause,  to  {iive  in  evidence  in  his  defence,  tlie  truth  of  the  mailer  con- 
tuined  in  the  pulilication  charged  ns  a  libel.  And  the  jury  who  shall 
try  the  cause,  shall  have  n  rifiht  to  detorniinc  the  law  and  the  fact,  un- 
der the  direction  of  the  court,  as  in  other  cases. 

Si;c.  4.  ^lii'l  hi>  it  fiirllur  cikicIi'iI,  That  this  net  shall  eoiitiniic 
and  be  in  force  until  the  third  day  of  March,  one  thousand  ei;.;lil  hun- 
dred and  one,  and  no  longer:  /VocfV/cf/,  that  the  expiration  of  the  aet 
shall  not  prevent  or  defeat  a  prosecution  and  punishment  of  any  olTence 
ajrainst  tht^  law,  during;  the  time  it  shall  be  in  force. 

Approved,  .Inly  It,  17'.»8.- 


VIUGINIA    UKSOLLTIOXS    OK    1798. 

VllKilNIA    /"    ivit. 

In  Till',  lIousK  OK  I)ki.1'.(;atks, 

Friday,  DecenduT  21st,  ITOS. 
Resolved,  that  the  General  Assembly  of  Vir<j;inia  doth  unequiviically 
express  a  firm  resolution  to  maintain  and  defend  the  constitution  of  llie 
United  .States,  and  the  constitution  of  this  state,  ajjainst  every  ag.nros- 
sioii,  cither  foreign  or  domestic,  and  that  they  will  support  the  jiovern- 
nient  of  the  I'nited  Slates  in  all  measures,  warranted  by  the  former. 

That  this  Assembly  most  solemnly  declares  a  warm  att  v^lnnont  to  the 
union  of  the  states,  to  maintain  which,  it  pledges  its  powers ;  and  that 

"Preston's  Documents  illustrative  of  American  History,  2i]  ed.,  pp.  280-282. 


AliT.SI'IX.] 


\'ii;(iiMA    i;i;soi,i  TioNs. 


UH:i 


f,ir  this  riid.  it  it*  tlifir  duty,  to  witdi  over  iiinl  (iiniosc  ivcit  iiifiMctioii 
(if  iliDsi"  iiiiiK'ipli'!*,  wliicli  <'iiiiHtitiiti'  llic  only  Imsis  of  that  union,  Ix- 
ciiisi'  :i  faithful  'lisiTvaiici' of  tiii'in,  ciiii  alone  .si'curr  its  ixistcnci',  and 
Ihc  |illllli(!  luipp'iiiCHH. 

TliMt  this  AsHcniMy  <lotli  fX|ili('itly  and  |iiT('ini>tot'ily  Wi'clarc,  that  it 
viiws  till'  iM>wi'rM  of  the  Kt'clcial  ( lovi'innicnt,  a^  rcsiui '  ,'  I  roni  tin'  com- 
pMcl,  to  which  till'  Htuti'S  arc  parlies;  as  liniilcd  Ky  thi  I'l.iin  sense  and 
iiilmlion  of  the  instrument  eonstitutin;;  that  com|  i "t  :  as  no  farther 
v.'ilid  Ihaii  tliey  arc  authorized  liy  tiie  firanls  cinnu'rati'il  in  tiial  coin- 
|iie!.  and  that  in  ease  of  a  delilieialc,  palpalili  ar  I  dangerous  cxercisi; 
<  ■  oilier  powers  not  ;:;ranted  by  tin-  saiil  coinpacl,  the  states  wiio  are 
jiriies  lla'i-elo  have  tin'  ri'j;lit,  and  are  in  duty  bound,  to  interpose  for 
^aresting  the  pro|jre>s  of  tiie  evil,  anil  for  nniintainiM'^,  within  their 
risjiectivc  limits,  the  .'iiillioritics,  ri;j,hts,  and  lilierlie-  appertaining,'  to 
tlieai. 

'I'liat  the  (leiicral  Assemlily  doth  also  express  its  deep  regret,  that  a 
bjiirit  has,  in  sundry  instances,  lieen  manifested  hy  the  Federal  (iovcrn- 
iiient,  to  enlarge  its  powers  liy  forced  constructions  of  the  conslitiiMonal 
charier  whieli  dclines  them  ;  and  that  indications  have  a|)peared  of  a  de- 
niuii  to  expound  certain  ffcncral  [ihrases  (which  haviniLr  liei  n  copied  from 
till'  very  limited  (iriint  of  ])o\verH  in  the  former  articles  of  confideration 
were  tliu  less  li;dile  to  Ite  misconstrued)  so  as  to  de-troy  llie  iiieanini; 
:uiil  elTect  of  tile  particular  enumeration,  wliicii  necessarily  explains 
anil  limits  the  jjeneral  phrases;  and  so  as  to  consolidate  the  states 
hy  ilr.;rees  into  one  sovereij^nty,  the  obvious  tendency  and  inevitable 
C()iisei|iienc'!  of  which  would  be,  to  transform  the  present  republican 
system  of  the  United  States,  into  an  absolute,  or  at  best  a  mixed 
nidiiarchy. 

That  tliedenoral  Assembly  doth  particularly  protest  ajiainst  the  pal- 
liiiMe  and  alarininij  infractions  of  the  constitution,  in  the  two  late  cases 
of  the  "Alien  anil  Sedition  acts,"  passed  at  the  last  session  of  Con- 
srrcss ;  the  first  of  which  exenMses  a  power  nowhere  delei;atcd  to  the 
Federal  (lovernment ;  and  which  by  unitini;;  IcLrislative  and  judicial 
powers,  to  those  of  executive,  subverts  the  <rcneral  principles  of  free 
government,  as  well  as  '.he  particular  orsjanization  and  positive  i)rovi9- 
ioiis  of  the  federal  constitution  :  and  the  other  of  which  acts,  exercises 
ill  like  manner  a  power  not  dcle<;ated  by  the  constitution,  but  on  the 
eoutraiy  expressly  and  positively  forbidden  by  one  of  the  amendments 
tliorelo;  a  power  which  more  than  any  other  oiifiht  to  produce  univer- 
sal alarm,  because  it  is  levelled  airainst  that  riiiht  of  freely  exaniiniii'; 
public  characters  and  measures,  and  of  free  communication  anion<^  the 


i84 


VIIKilXIA    UESOLUTIONS. 


[CIIAP.  II. 


people  tLci-eou,  whicli  has  evur  bw'ii  justly  deemed,  the  only  etTectiial 
<riiiirdinu  of  every  other  rigiit. 

That  this  state  having  by  its  convention  wiiich  ratified  the  federal 
ponstitiition,  expressly  declared,  "that  ainong  other  essential  rights, 
the  liberty  of  conscience  and  the  press  cannot  be  cancelled,  abridged, 
restrained  or  modified  by  any  aiitliority  of  the  United  States,"  and  from 
its  extreme  anxiety  to  {jiiard  these  rights  from  every  possible  attack  of 
sophistry  and  ambition,  having  with  other  states  recommended  an 
amendment  for  tliat  purpose,  which  amendment  was  in  due  time  an- 
nexed to  tiie  constitution,  it  would  mark  a  reproachful  inconsistency 
and  criminal  degeneracy,  if  an  indilTerence  were  now  siiewu  to  tiie  must 
palpable  violation  of  one  of  tiic  riglits  thus  declared  and  secured,  and 
to  the  establishment  of  a  precedent  wliich  may  be  fatal  to  tlie  other. 

That  the  good  people  of  this  Commonwealth  having  ever  felt  and  con- 
tinuing to  feel  the  most  sincere  affection  for  tiieir  brethren  of  the  otiicr 
states,  the  truest  anxiety  for  establishing  and  perpetuating  the  uuion  of 
all,  and  the  most  scrupulous  fldeliiy  to  that  constitution  wliich  is  the 
pledge  of  mutual  friendship,  and  the  instrument  of  n\utual  happiness: 
the  General  Assendily  doth  solemnly  ai)peal  to  the  like  dispositions  of 
the  other  states,  in  confidence  that  they  will  concin-  with  this  common- 
wealth in  declaring,  as  it  does  hereby  declare,  that  the  acts  aforesaid 
are  unconstitutional,  and  that  the  necessary  and  projjer  measures  will 
be  taken  by  each  for  co-operating  with  this  state,  in  maintaining  imini- 
paired  the  authorities,  rights,  and  liberties,  reserved  to  the  states  re- 
spectively, or  to  tlie  people. 

That  the  Governor  be  desired  to  transmit  a  copy  of  the  foregoing 
resolutions  to  the  executive  authority  of  each  of  the  other  states,  with 
a  rc(iue8t,  that  the  same  may  be  communicated  to  the  legislature 
thereof. 

And  that  a  copy  be  furnished  to  eacli  of  the  Senators  and  Ilepre- 
scntatives  representing  this  state  in  the  Congress  of  the  United  States. 

Attest,  John  Stkwakt,  C.  II.  I). 
1 798,  December  the  '2-lth. 
Agreed  to  by  the  Senate. 

II.   liKOOKE,  C.  S.' 


'  Preston's  Doeiuuents  illustrative  of  American  History,  2d  ed.,  pp.  284-287. 


Ari'KNDlX.J  KENTUCKY    KKSOLUTIONS    f)r 


1708. 


285 


KKNTUCKY    RESOLUTIONS  OF   179«. 

I.  Resolved,  that  the  several  states  composing  tlie  L'uitcd  States  of 
America,  are  not  united  on  tiie  principle  of  unlimited  submissiou  to 
tln'ir  General  Government;  but  that  by  compact  under  tlie  stylf,  and 
title  of  a  Constitution  for  the  United  States  and  of  anifudmcnts  thereto, 
tlicy  constituted  a  (Jeneral  Government  for  special  purposes,  delcjfatcd 
to  that  (iovernmcnt,  certain  definite  powers,  reserving  each  state  to 
itself,  the  residuary  mass  of  right  to  their  own  self-Governnient ;  and 
tluit  whensoever  the  General  Government  assumes  undelegated  powers, 
its  acts  are  unauthoritative,  void,  and  of  no  force  :  That  to  this  compact 
each  state  acceded  as  a  state,  and  is  an  integral  parly,  its  co-states 
foil  '-ig  as  to  itself,  the  other  party:  That  tiie  (iovernmcnt  created  by 
this  compact  was  not  made  the  exclusive  or  final  JHfkje  of  the  extent 
of  tlie  powers  delegated  to  itself ;  since  that  would  have  made  its  dis- 
cretion, and  not  the  Constitution,  the  measure  of  its  powers ;  but  that 
as  in  all  other  cases  of  compact  among  parties  liaving  no  common 
Jiulge,  each  party  has  an  equal  v'l^ht  to  judge  for  itself,  as  well  of 
infractions  as  of  the  mode  and  measure  of  redress. 

II.  Resolved,  that  the  Constitution  of  the  United  States  having  dele- 
gated to  Congress  a  power  to  punish  treason,  counterfeiting  the  securities 
and  current  coin  of  the  United  States,  piracies  and  felonies  committed  on 
the  High  Seas,  and  offences  against  the  laws  of  nations,  and  r.o  other 
crimes  whatever,  and  it  being  trne  as  a  general  principle,  and  one  of 
the  amendments  to  the  Constitution  having  also  declared,  "  that  the 
powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohiliited  by  it  to  the  States,  are  reserved  to  the  States  respectively, 
01-  to  the  people,"  therefore  also  the  same  act  of  Congress  passed  on 
tlie  1  Itli  day  of  July,  1798,  and  entitled  "  An  ■  i  addition  to  the  act 
entitled  an  act  for  the  punishment  of  certain  crimes  against  the  United 
Slitcs ;  "  as  also  the  act  passed  by  them  on  the  27th  day  of  June,  1798, 
entitled  "  An  act  to  punish  frauds  committed  on  the  IJank  of  the  United 
!•  tntes  "  (and  all  other  their  acts  which  assume  to  create,  dcliiie,  or 
imiiish  crimes  other  than  those  enumerated  in  the  constitution)  are 
altogether  void  and  of  no  force,  and  that  the  power  to  create,  define, 
ii'ul  punish  such  other  crimes  is  reserved,  and  of  right  appertains  solely 
and  exclusively  to  the  respective  states,  each  within  its  own  Territory. 

III.  Renolced,  that  it  is  trne  as  a  general  principle,  and  is  also 
expressly  declared  by  one  of  the  amendments  to  the  Constitution  that 
"  the  powers  not  delegated  to  the  U'nited  States  by  the  Constitution,  nor 


286 


KKNTrCKV    IlKSOLl'TIONS    OK    IT'.IS. 


[CIIAP.  !I. 


]iroliil)it('il  by  it  to  tlio  Hta(»'.s,  are  ivsorvi'd  to  tlio  states  iv>i)octivtiv  i  :■ 
to  tlio  pt'opk' ;  "  and  tliat  no  power  over  tlio  froedom  of  rcli^iion,  frtcliiHi 
of  !~pef('li,  or  freedom  of  the  j)ri's.s  hein.'i'  delefrated  to  tlic  I'llited  Slntes 
by  llie  Constitution,  nor  proiiibited  liy  it  to  the  states,  all  l;iwfiil 
powers  respecting  the  same  did  of  right  remain,  and  were  reserv  od  to 
the  states,  or  to  the  people  :  That  thus  was  nianifestod  their  determina- 
tion to  retain  to  themselves  the  right  of  judging  how  far  the  licentious- 
ness of  speech  and  of  tiie  press  may  be  abridged  without  letiseiiiiij; 
their  nseftd  freedom,  and  how  far  those  abuses  which  cannot  be  sepa- 
rated from  llieir  use,  shoidd  be  tolerated  rather  than  the  use  bo 
destroyed;  and  thus  also  they  guarded  against  all  abridgement  by  tiic 
United  States  of  the  freedom  of  religious  opinions  and  exercises,  ami 
retained  to  tiieniselves  the  right  of  protecting  the  same,  as  this  stale, 
by  a  Law  passed  on  the  general  demand  of  its  Citizens,  had  already 
protected  them  from  all  human  restraint  or  interference:  And  that  in 
addition  to  this  general  principle  and  express  declaration,  anotlii'r  and 
more  especial  provision  has  been  made  by  one  of  the  amendmeiils  to 
the  Constitution  which  expressly  declares,  that  "  Congress  shall  make 
no  laws  respecting  an  Kstabli;5hment  of  religion,  or  prohibiting  the  free 
exercise  thereof,  or  abridging  the  freedom  of  speech,  or  of  flic  jiress," 
thereby  guarding  in  the  same  sentence,  and  tmder  the  same  words,  llie 
freedom  of  religion,  of  speech,  and  of  the  press,  insomuch,  tiuit  wliat- 
ever  violates  either,  tin'ows  down  the  sanctuary  which  covc^rs  the  others, 
and  that  li!)els,  falsehoods,  defamation,  e(iually  with  heresy  and  false 
religion,  are  withheld  from  the  cognizance  of  federal  tribunals.  Tliiit 
therefore  the  act  of  the  Congress  of  the  United  States  passed  on  the 
11th  day  of  .Iidy,  1  TDH,  entitled  "  An  act  in  addition  to  tiie  act  for  the 
punishment  of  certain  crimes  against  the  United  States,"  which  does 
abridge  the  freeilom  of  the  press,  is  not  law,  but  is  altogether  void  and 
of  no  elTect. 

IV.  licHiilri'il,  that  alien  friends  arc  under  the  jurisdiction  and  pro- 
tection of  the  laws  of  the  state  wherein  they  are ;  that  no  power  over 
them  has  been  delegated  to  the  United  Stales,  nor  prohibited  to  tlie 
individual  states  distinct  from  their  power  over  citizens;  and  it  being 
true  as  a  general  principle,  and  one  of  the  ameudmeuts  to  the  Con- 
stitution having  also  declared,  that  "the  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibiti'd  to  the  states  arc 
reserved  to  the  stales  respectively  or  to  the  people,"  the  act  of  tlie 
Congress  of  the  Uidted  States  passed  on  the  :.'2d  day  of  June,  IT'.tH, 
piililled  "  An  act  concerning  aliens,"  which  assumes  power  os'er  alien 
friends  not  delegated  by  the  Constitution,  is  not  law,  but  is  altogether 
void  and  of  no  force. 


Arri:Ni>ix.]        kkntucky  kesoia-tions  ok 


1708. 


287 


\  .  limolrcil,  lliiit  ill  adiUtioii  to  the  {{enenil  principle  as  well  :;s  the 
ex|iiiss  (ic'chiration,  that  powers  not  dclej^iiteil  arc  reserved,  aiiotlicr 
and  miMo  special  jirovision  inserted  in  tlie  Constitution  from  almndiint 
(■aiili<iii  lias  declared,  "  that  tlio  miijritllon  or  importation  of  sucli  persona 
as  any  of  the  states  now  existing  shall  think  proper  to  admit,  shall  not 
lie  pidliiliitiMl  liy  the  Congress  prior  to  the  year  1808."  That  this 
CoiiiMioinv<'altli  does  admit  the  migration  of  alien  friends  described  as 
the  siihject  of  the  said  act  concerning  aliens;  that  a  provision  against 
proliiliitiiig  their  migration,  is  a  iJiovision  against  all  acts  eipiivalent 
tlii'i'ito,  or  it  would  be  nugatory  ;  that  to  remove  them  when  migrated 
is  eiiuivalent  to  a  prohibition  of  their  migration,  and  is,  therefore 
coiiliary  to  the  said  provision  of  the  Constitution,  and  voiil. 

\l.  /iV.s()/('('(Z,  that  the  imprisoiiinent  o.'  a  person  under  the  pro- 
tection of  tlie  I.aws  of  this  (lominonwealtli  on  his  failure  to  obey  the 
simple  orili'i-  of  the  President  to  depart  out  of  the  United  States,  as  is 
undertaken  by  the  said  act  entitled  "An  act  concerning  .\liens,"  is 
contrary  to  the  Constitution,  one  amendment  to  which  has  jMovided, 
that  "  no  person  shall  be  deprived  of  liberty  without  due  process  of 
law,"  and  that  another  having  provided,  '  that  in  all  criminal  prosecu- 
tions, tlie  accused  shall  enjoy  the  right  to  a  public  trial  by  an  impartial 
jury,  to  be  informed  of  the  nature  and  cause  of  the  aceusalion,  to  be 
confronted  with  the  witnesnes  against  him,  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favour,  and  to  have  the  aMsistauce  of 
connscl  for  his  defence,"  the  same  act  undertaking  to  authori/.o  the 
rnsidcnt  to  remove  a  person  out  of  the  L'uitod  States  who  is  under  the 
prolcetioii  of  the  Law,  on  his  own  suspicion,  without  accusation,  with- 
out jury,  without  public  trial,  without  confrontation  of  the  witnesses 
against  iiim,  without  having  witnesses  in  his  favour,  without  defiiice, 
williiiut  counsel,  is  contrary  to  these  provisions  also  of  the  Constitution, 
is  tlu'iefore  not  law  but  utterly  void  and  of  no  force. 

That  transferring  the  power  of  judging  any  person  who  is  tinder  the 
protection  of  the  laws,  from  the  Courts  to  the  I'resideiit  of  the  I'liited 
States,  as  is  undertaken  by  the  same  act  coneerning  Aliens,  is  against 
the  article  of  the  Constitution  which  provides,  that  "  the  judicial  power 
of  the  I'nited  Slates  shall  bo  vested  in  the  Courts,  the  .ludges  of  wliich 
shall  hold  their  o!Ilces  during  good  behaviour,"  and  that  the  said  act  is 
void  for  that  reason  also;  and  it  is  further  to  be  noted,  that  this 
transfer  of  Jiidii-iary  power  is  to  that  magistrate  of  the  General  (Joverii- 
mciit  who  already  possesses  all  the  Kxecnitive,  and  a  (lualified  negative 
in  all  the  liCgislative  ])owers. 

VII.   Ui'sulvcil,  that  the  construction  applied  by  the  General  Govern- 


288 


KENTUCKY    KESOLUTIONS    OF    1798.  [CIIAI'.  11. 


mcnt  (as  is  evidenced  by  Hiindry  of  tlicir  proceedings)  to  tliose  parts  of 
the  Constitution  of  tlie  I'nitod  States  whicli  delegate  to  Congress  a 
power  to  lay  and  collect  taxes,  duties,  imposts,  and  excises;  to  pay 
the  debts,  and  provide  for  the  common  defence,  and  general  welfare  of 
the  United  States,  and  to  make  all  laws  which  sliall  he  necessary  and 
proper  for  carrying  into  execution  the  powers  vested  by  the  Constitution 
in  the  (iovernment  of  tiie  United  States,  or  any  department  tlieroof, 
goes  to  the  destruction  of  all  the  limits  prescribed  to  their  power  l)y 
the  Constitution — That  words  meant  by  tliat  instrument  to  be  sub- 
sidiary only  to  the  execution  of  tiie  limited  powers,  ought  not  to  be  so 
construed  as  themselves  to  give  unlimited  jwwers,  nor  a  part  so  to  be 
taken,  as  to  destroy  the  whole  residue  of  the  instrument :  That  tlie 
proceedings  of  the  (Jeneral  Government  under  colour  of  these  articles, 
will  be  a  fit  and  necessary  subject  for  revisal  and  coriection  at  a  time 
of  greater  tranquillity,  while  those  specified  in  the  preceding  resolutions 
call  for  immediate  redress. 

Vril.  Jh'xolrerl,  that  the  preceding  Resolutions  be  transmitted  to  the 
Senators  and  Kopresentatives  in  Congress  from  this  Commonwealth, 
who  are  hereby  enjoined  to  present  the  same  to  their  respective  Houses, 
and  to  use  their  best  endeavours  to  procure  at  the  next  session  of 
Congress,  a  repeal  of  the  aforesaid  unconstitutional  and  obnoxious 
acts. 

IX.  Ilnsolcpd  histli/,  that  the  (lovernor  of  this  Commonwealth  be, 
and  is  hereby  autliori/.ed  and  requested  to  communicate  the  prei'eding 
Resolutions  to  the  Legislatures  of  the  several  States,  to  assure  tbem 
that  tiiis  Coni'nonwcalth  considers  Union  for  specified  National  purposes, 
and  particularly  for  those  si)ecified  in  their  late  Federal  Compact,  to  be 
friendly  to  the  peace,  happiness,  and  prosperity  of  all  the  statos :  that 
faitliful  to  that  compact  according  to  the  plain  intent  and  meaning  in 
which  it  was  understood  and  pcceded  to  by  the  several  parties,  it  is 
sincerely  anxious  for  its  preservation  :  that  it  does  also  believe,  tiiat  to 
take  from  the  states  all  the  powers  of  self  government,  and  trp.nsfcr 
them  to  a  general  and  consolidated  Government,  without  regard  to  the 
j<I)ecial  delegations  and  reservations  solemnly  agreed  to  in  that  compact, 
is  not  for  the  peace,  happiness,  or  prosperity  of  these  states:  And  that 
therefore,  this  Commonwealth  is  determined,  as  it  doubts  not  its  Co- 
states  are,  to  submit  to  undelegated  &  consequently  unlimited  powers 
in  no  man  or  body  of  men  on  earth :  that  if  the  acts  before  specifiwl 
should  stand,  these  conclusions  would  flow  from  them  ;  that  the  General 
(iiovernment  may  place  any  act  they  think  proper  on  the  list  of  crimes 
&  punish  it  themselves,  whether  enumerated  or  not  enumerated  by  the 


,\i'im:ni)i\'.]       kkntucky  uksolutioxs  nv  i7na. 


289 


('(institution  as  co<;iiizable  by  them:  that  thoy  intiy  transfer  its  eo^- 
ni/.:iii(c'  to  the  I'rosidont  or  arij'  ollicf  ])orsoii,  who  may  himself  be  the 
ncciisiT,  counsel,  judije,  and  jury,  whose  xn.tpicions  may  be  the  evidence, 
liis  onliM-  the  sentence,  his  olllcer  the  executioner,  and  his  breast  llie  sole 
rccniil  of  the  transaetion :  tiiat  a  vcrj'  numerous  and  valuable  descrip- 
tiiMi  of  tlie  inhabitants  of  these  states,  beinji  by  this  precedent  reduced 
us  outlaws,  to  the  absolute  dominion  of  one-  man  and  the  barrier  of  the 
Coii^titiilioii  thus  swept  away  fiom  us  all,  uo  rampart  now  remains 
;ii;;ii:ist  tlie  passions  and  tiie  jiowers  of  a  majority  of  Conj^ress,  to 
|ii()!crt  from  a  like  exportation  or  other  grievous  punishment  the 
iiiinorily  of  the  same  body,  the  lie;j;islature,  .Judges,  Governors,  the 
Coiiiisflldrs  of  the  states,  nor  their  otiier  peaoeablo  inhabitants  wIk. 
mayvfiiture  to  reclaim  tlie  constitutional  rights  and  liberties  of  the  state 
;ui(l  till'  people,  or  who  for  other  causes,  good  or  bad,  may  be  obnoxious 
U)  t!ie  views  or  marked  by  the  suspicions  of  the  President,  or  l)e  thought 
liaiiin-rous  to  his  or  their  elections  or  other  interests  public  or  personal : 
lliiil  llie  friendless  alien  has  indeeil  been  selected  as  the  safest  subject 
iif  a  lirst  experiment :  but  the  citizen  will  soon  follow,  or  rather  has 
:ilri':iilv  followed;  for  already  has  a  Sedition  Act  marked  him  "  t  its 
prev:  tiiat  these  and  successive  acts  of  the  same  character,  unless 
:ir'i-ti'd  on  the  threshold,  may  tend  to  drive  these  states  into  rovolu- 
tiiii  and  blood,  and  will  furnish  new  calumnies  against  Republican 
<ii)ViTiuiients,  and  new  pretexts  for  those  who  wish  it  to  be  believed, 
tli:it  iiiiiu  cannot  be  governed  but  by  a  rod  of  iron : "  that  it  would  be  a 
(l:uiut'roiis  delusion  were  a  conlidence  in  the  men  of  our  choice  to  silence 
our  l\'!us  for  the  safety  of  our  rights  :  that  confidence  is  everywhere 
tlio  I'urcnt  of  despotism  :  free  government  is  founded  in  jealousy  and 
not  iii  conlidence;  it  is  jealousy  and  not  conlidence  which  prescribes 
liiuitcil  Constitutions  to  bind  down  those  whom  we  are  obliged  to  trust 
wiih  [jiiwer :  that  our  Constitution  has  accordingly  fixed  the  limits  to 
T.liich  Mild  no  further  our  conlidence  may  go;  and  let  the  honest  advo- 
Odti'  I  if  confidence  read  the  Alien  and  Sedition  Acts,  and  say  if  the 
Constitution  has  not  been  wise  in  fixing  limits  to  the  fiovernment  it 
crenti'd,  and  whether  we  should  be  wise  in  destroying  those  limits? 
Let  liiin  say  what  the  Government  is  if  it  be  not  a  tyranny,  which  the 
moil  of  our  choice  have  conferred  on  the  President,  and  the  President 
fif  our  clioiee  has  assented  to  and  accepted  over  the  friendly  strangers, 
to  wliDin  the  mild  spirit  of  onr  country  and  its  laws  had  pledged  bospi- 


•'  riiis  IruiKuago  will  seem  less  nl)surd  to  those  who  reoolleet  that  the  rclgn 
of  torrm-  in  France  had  closed  Ii'sa  than  four  years  before,  and  that  the  French. 
Bopubllc  fell  within  the  following  year. 


iiHO 


KKNTITCKY    UKSOI.UTIONS    OF    1798. 


[ClIAr.  II. 


tulity  and  protection  :  timt  the  men  of  our  choieo  have  more  respecied 
tlic  liiire  Biispic'iona  of  the  I'rcsUU'nt  tlmn  the  solid  riuhts  of  iuiiopciu'c, 
file  chiiiiis  of  jiistiliciition,  the  sacred  forces  of  truth,  and  the  forms  the 
substuuce  of  law  and  justice.  lu  questions  of  power  then  let  no  more 
be  heard  of  contidenoe  in  man,  but  bind  him  down  from  misciiief  l)y 
the  cliaiiis  of  the  Constitution.  That  this  Connnonwealth  does  tin  le- 
fore  call  on  its  co-Slates  for  an  expression  of  their  sentiments  on  tiie 
acts  coneerning  Aliens,  and  for  tlie  punishment  of  certain  crimes  liereiu 
before  speeilied,  plainly  declarini?  whether  these  acts  are  or  are  not 
authorized  by  the  Federal  Compact?  And  it  doubts  not  that  their 
sense  will  be  so  announced  as  to  prove  their  attachment  unaltered  to 
limited  (iovernnient,  whetlier  {general  or  [larlicular,  and  that  the  riuhts 
and  liberties  of  their  Co-states  will  be  exposed  to  no  dangers  by 
remaining;  end)urked  on  a  connnon  bottom  with  their  own:  That  tliey 
will  concur  with  this  Commonwealth  in  considerinf;  tlie  said  acts  as  ^-o 
palpably  against  the  Constitution  ns  to  amount  to  an  undisguised  de- 
claration, that  the  Compact  is  not  meant  to  be  the  measure  of  tlie 
powers  of  the  Ceneral  (iovernnient,  but  that  it  will  jiroceed  in  tlic. 
exercise  over  tliese  states  of  all  powers  whatsoever:  That  they  will 
view  this  as  seizing  the  rights  of  the  states  and  consolidating  llieiii  in 
the  hands  of  the  general  government  with  a  power  assumed  to  liiiid  tlic 
slates  (not  merely  in  cases  made  federal)  but  in  all  cases  whatsocvci'. 
by  laws  maile,  not  with  their  consent,  but  by  others  against  tlnir 
consent:  That  this  wouKl  be  to  surrender  the  form  of  (iovcrnnieiil  we 
have  chosen,  :ind  live  under  one  deriving  its  powers  from  its  own  will, 
and  not  from  our  authority;  ami  that  the  Co-states,  recurring  to  tluir 
natural  right  in  cases  not  made  federal,  will  concur  in  de(^!aring  tluse 
acts  void  and  of  no  force,  and  will  each  unite  with  this  Coin.Tionwealtli 
in  requesting  their  repeal  at  the  next  session  of  Congress. 

Kdmunk  Uri.uK'K,  S.  H.  I!. 

John  Camimiki.l,  S.  S.  1'.  T. 

Passed  the  House  of  Kepresentatives,  Nov.  lOth,  17!>S. 

Attest,  Thomas  Todh,  C.  II.  K. 
In  Senate,  November  13th,  17'J8,  unanimously  concurred  in. 

Attest,  B.  TiiUKSTON,  Clk.  S.ii. 

Approved  November  16th,  17U8. 

JaMKS    (iAKliAUn,  <!.   Iv. 

Hy  the  (lovernor. 

IIauuv  Toui.min,  Secretary  of  State. ^ 

*  ProHtoti's  Docuinoiits  illustrative  of  Aiuerieiin  Histoi'y,  2d  e<l.,  pp.  '2S7-'2i)5. 


Al'riONDIX.j  KENTL'CICY    ItEMOLl'TIONS    Of    1799. 


291 


THE   KENTUCKY    RESOLUTIONS   OF    1799. 

IIOLSK    OK    UkI'KESENTATIVES, 

Thursday,  Nov.  14,  1799. 

TIk'  house,  according  to  tlie  standing  order  of  tlieday,  resolved  itself 
iiilo  ;i  cuuiniittee,  of  the  whole  liouse,  on  tiio  state  of  the  coniinon- 
wcalili,  (Mr.  Desha  in  the  chair,)  and,  after  some  time  spent  therein, 
till' s|ii':ik''r  resumed  the  cliuir,  and  Mr.  Desha  reported  that  tlie  eoni- 
iiiittee  had  talvcn  under  consideration  sundry  resolutions  i)assed  by  sev- 
I'lal  state  legislatures,  on  the  subject  of  the  Alien  and  Sedition  Laws, 
and  liad  come  to  a  resolution  thereupon,  which  he  delivereil  in  at  tin- 
clerk's  table,  where  it  was  read  and  Hiinidmousli/  agreed  to  by  the  Mouse 
as  follows  :  — 

The  representatives  of  the  good  jjeojile  of  this  conunonwealth,  iir 
(leiitTid  Assembly  convened,  having  niatin-ely  considered  the  answers 
iif  sumliy  states  in  the  I'nion  to  their  resolutions,  jiiissed  the  last  ses- 
sion, respecting  certain  unconstitutional  laws  of  Congress,  connnonly 
(•:ill((l  the  Alien  and  Sedition  Laws,  woidd  be  faithle  s  indeed  to  them- 
silves,  and  to  those  they  represent,  were  ti ''y  silently  to  ac(piiesce  iu 
the  piiiiciples  and  doctrines  attempted  to  be  maintained  in  all  those 
answers,  that  of  Virginia  only  excepted.  To  again  enter  the  field  of 
:uj;iMnent,  and  attempt  more  fully  or  forcibly  to  expose  the  unconstitu- 
tionality of  those  olnioxious  laws,  would,  it  is  aiiprehended,  be  as  nn- 
iipcessary  as  inuivailing.  We  cannot,  however,  but  lament  that,  in  the- 
ilisciission  of  those  interesting  subjects  by  sundry  of  the  legislatures  of 
our  sister  states,  unfounded  suggestions  and  nncandid  insiiniations,  de- 
roL'atory  to  the  true  character  and  i)rin<'iples  of  this  conunonwealth, 
liiive  been  substituted  in  place  of  fair  reasoning  and  sound  argument, 
dur  o])iuion8  of  these  alarming  measures  of  the  general  government, 
totjclher  with  our  reasons  for  those  opinions,  were  detailed  with  decency 
luid  with  temper,  and  subnutted  to  the  discussion  and  judgment  of  our 
fellow-citizens  throughout  the  Union.  Whether  the  like  decency  and 
tiiiiper  have  been  observed  in  the  answers  of  moat  of  those  .States  who 
have  diMiiod  or  attempted  to  obviate  the  great  truths  contained  in  those 
resolutions,  we  have  now  only  to  submit  to  a  candid  world.  Faithful 
to  tin'  true  pritifijtles  of  the  J\'ih'r(tl  Union,  tinconxcions  of  n»>/  ih>.~:i<jns 
to  ili^liirh  the  harmon;/  of  that  Union  and  anxious  oidy  to  escape  the 
faiiiTs  of  despotism,  the  good  people  of  this  cominonweallh  are  regard- 
less of  censure  or  calumniation.     Lest,  however,  the  silence  of  this 


29: 


KKNTfClvV     l;ICSi)I.rT!()NS    OK     17!»9. 


[CIIAI'.  II. 


C()iiiinonw(.'!ilih  slioiiM  bi'  CDiislnii'd  into  :iii  Mcqiiii'scoiioe  in  tliu  dootriiips 
iiiiil  piiiiciiilcs  :i(lv!mc('(l,  ami  atlpiiijitt'd  io  lie  niiiiiitiiitie;!  by  the  said 
Miswcf.s  or,  at  Iciist  tliOM!  of  our  follow-cilizoii?*,  tliioiipiioiit  tilt'  I'Mioii, 
wlio  Ko  widely  (lilTor  from  iih  on  tlioso  iinpoilant  Hubjocln,  sliould  bi>  do- 
hided  by  the  expectation  that  we  shall  be  deterred  from  wiuit  we  nin- 
ecive  our  duty,  or  Hinink  from  tiie  prineiples  contained  in  tliose 
resoliitioiH,  —  therefore, 

licmilri'd,  That  this  Coiiimonwealtli  consideiri  llie  I''('der:d  riiion 
upon  the  term.H  and  for  the  ]»irposes  specilled  in  the  late  eoiiipact,  con- 
ducive to  the  liberty  and  hajipiness  of  the  several  Slates:  Thai  it  docs 
now  iiiieqiiivocally  declare  its  attachiiienl  to  the  I'liioii,  and  lothatcom- 
paet,  a^irceably  to  itH  obvious  and  ri'al  intention,  and  will  bo  anioiiLj  the 
last  to  seek  its  dissolntioii:  That,  if  those  who  administer  the  {iciieial 
<i'overi'.ment  be  permitted  to  transfiress  the  limits  tixed  by  that  compact, 
by  a  total  disre<;ard  to  the  special  dcleuations  of  power  tlierein  dm- 
taincd,  an  annihilation  of  the  State  <;overnmcnts,  and  tlu?  creation,  upon 
their  ruins  of  a  general  consolidated  Lroveniment,  will  be  the  inevitable 
coiise(inencc :  That  the  principle  and  construction,  contended  for  hy 
Hiindry  of  the  state  legislatures,  that  the  general  governiiunt  is  the  cx- 
<'lusive  judge  of  the  extent  of  the  powers  delegaleil  to  it,  slop  not  short 
of  denjxjlism  —  since  the  discretion  of  those  who  administer  the  gov- 
ernment, and  not  the  Conntitiilion,  would  be  the  measure  of  their 
j)owers :  That  the  several  Slates  who  formed  that  instrument,  beiiij; 
sovereign  and  imlcpendent,  have  the  uiupiestionable  right  to  judge  of 
the  infraction;  and,  Thut  <i  hitllijicittinn,  li>/ t/n/.it'  :tiivi'r(!i(/nliex  "f  all 
inundhorizi'd  (vIs  dmn'.  intdiT  valnr  of  tliiit  inslri'iitinl,  in  the  rujldf'il 
rcmedij :  That  this  Conimonwealth  does,  under  the  most  deliberate  re- 
consideration, declare,  that  the  said  Alien  and  Sciliiion  Laws  are,  ia 
their  opinion,  palpable  violations  of  the  said  Constitution;  an<l,  how- 
ever cheerfully  it  may  be  disposed  to  surrender  its  opinion  to  a  majority 
of  its  sister  States,  in  matters  of  ordinary  or  doubtful  policy,  yet,  ia 
niomeutons  regulations  like  the  ])resent,  which  so  vitally  wound  the  best 
rights  of  the  citizen,  it  would  consider  a  silent  accpiiesceiice  as  highly 
criminal :  That,  although  this  Coininonwealth,  as  a  party  to  the  Federal 
compact,  will  bow  to  the  liiim  of  thi'.  Union,  yet  it  does,  at  the  same  time, 
declare,  that  it  will  not  now,  or  ever  hereafter,  cease  to  o|)pose,  in  a 
constitutional  manner,  every  attemi)t,  at  what  quarter  so  ever  olTcied, 
to  violate  that  compact:  And  finally,  in  order  that  no  jiretexts  or  argii- 
meuta  may  be  drawn  from  a  supposed  acquiescence,  on  the  jiart  of  tlii8 
Commonwealth,  in  the  constitutionality  of  those  laws,  and  be  therehy 
used  as  precedents  for  similar  future  violations  of  the  federal  com- 


ArrHNDIX.]      riUST   OUniNAXCK    OF   XULLiriCATION. 


293 


pict,  tills  CotninonTvealth   docs    now  ontor   against   them    its*   sulcinn 
i'i:iiir.,-^T. 
Kxtract,  etc.  Attest,  Thomas  Todd,  C.  II.  K. 

lu  Senate,  Nov.  22,  17!)!).  —  Read  and  concurred  in. 

Attest,   li.  TllLKSTON,  C.   S.' 


AN  OKDINANCE  TO  NULLIFY  CKUTAIX  ACTS  OF  THK  CONfiRESS  OF 
TIIK  INnKD  STATKS,  I'UUroilTINfi  TO  HE  LAWS  LAVINCi  DITTIES 
AND  nil'OST.S  ON  THE  IJU'OItTATlON  OF  FOKKKiN  CO-MMODITIEH. 

Wln'ivas  tlie  Congress  of  the  I'nited  States  liy  varidus  acts,  jinr- 
piiiliiiir  to  be  acts  laying  dntii's  and  imposts  on  fureiirn  im|)(Mts,  luit 
in  reality  intended  for  the  protection  of  domeslic  manufacturers,  and 
tiie  giving  of  bonnties  to  classes  and  individuals  engaged  in  particular 
I'Miploynients,  at  the  expense  anil  to  the  injury  and  oppression  of  other 
ellipses  and  individuals,  and  by  wholly  exempting  from  taxat  'U  certain 
foreign  connnodities,  such  na  arc  not  j)roduced  or  nnmufaclured  in  the 
1,'iiiled  States,  to  afford  a  pretext  for  imposing  higher  and  excessive 
duties  on  articles  similar  to  those  inten<led  to  be  ])rotc'cted,  hath  ex- 
ceeded its  just  powers  under  the  constitution,  which  confers  on  it  no 
authority  to  afford  such  protection,  and  hath  violated  the  true  mean- 
ing and  intent  of  the  constitution,  which  proviiles  for  e(|uality  in  im- 
])(ising  the  burdens  of  taxation  ni)on  the  several  States  and  portions  of 
till'  confederacy:  and  whereas  the  said  Congress,  exceeding  its  just 
powi  r  to  impose  taxes  and  collect  revenue  for  the  purpose  of  etTecting 
and  accomplishing  the  specitic  objects  and  imrposcs  which  the  consti- 
tiitiim  of  the  Tnited  States  authorizes  it  to  elYect  and  accoir.plish,  hath 
raised  and  collected  unnecessary  revenue  for  objects  unauthorized  by 
tlie  constitution  ; 

Wc,  therefore,  the  people  of  tlu!  Slate  of  South  Carolina,  in  conven- 
ticiii  assembled,  do  declare  and  ordain,  and  it  is  hcrcdiy  dec  lari'd  and 
onliiiiied,  that  the  several  acts  and  parts  of  acts  of  the  t  ongress  of  the 
I'nited  States,  purporting  to  be  laws  for  the  imposing  of  duties  and 
imposts  on  the  importation  of  foreign  commodities,  and  now  having 
actual  operation  and  effect  within  the  I'nited  States,  and,  more  espe- 
eially,  an  act  entitled  "An  act  in  alteration  of  the  several  acts  iinpos- 
inL'  duties  on  imports,"  ap|)roved  on  the  nineteenth  day  of  i^Iay,  one 
thousand  eight  hundred  and  twenty-eigh.t,  and  also  an  act  entitled 
"  An  act  to  alter  and  amend  the  seveial  acts  imposing  duties  on  im- 
pDi'ts,"   approved  on  the  fourteenth  day  of  .Inly,   one  thousand  eight 

'  rroston's  Documents  illuslrativo  of  American  History,  2(1  ed.,  |)p.  •2;)5-298. 


294 


rinST    f)i:i>IN.\NrK    ()!•'    Nfl.MKICATION,        [rilAP.  I[, 


hiiiitlrcd  (iiid  thirty-two,  are  un.iutlioiizod  by  tlio  Constitution  of  the 
United  Stiitos,  iind  violiite  tiio  ti'uc  nicunint;  nml  intent  tlieroof  and  nro 
linll,  void,  and  no  l:\w,  nor  l)indiii;f  ti|i(in  tliis  Slate,  its  oIliceiH  and  citi- 
zens;  and  ail  iirondses,  eonlracls,  and  oliii^ialioiis,  made  or  eiitend 
into,  or  to  lie  made  or  entered  into,  «itli  pnrpo.se  to  secnre  the  duties 
ini])()sed  liy  said  acts,  and  all  jndicial  proceedings  wliicli  sliall  Ipo  lieiv- 
after  liad  in  alliruianee  thereof,  are  and  shall  be  held  utterly  null  and 
void. 

And  it  is  further  ordained,  that  it  shall  not  he  lawful  for  any  of  the 
coiisliluted  authorities,  wlietherof  this  Stale  or  of  the  Inited  State:<,  Id 
enforce  the  payment  of  duties  imposed  liy  the  said  ac's  within  the  liinil» 
of  this  Stale;  lint  it  shall  lie  the  duty  of  the  le;iislature  to  ndo[)t  sneli 
measures  and  i)ass  such  acts  as  may  he  necessary  to  iiive  full  elTect  to 
tills  ordinance,  and  to  present  the  enforcenieut  and  arrest  the  operation 
of  the  said  acts  and  parts  of  acts  of  the  {'onj;ress  of  the  I'nited  States 
within  the  limits  of  this  State,  from  and  after  the  1st  day  of  l''ehniary 
next,  and  the  duty  of  all  other  constituted  authorities,  and  of  all  per- 
sons residing  or  being  within  the  linnts  of  this  State,  and  tliey  are 
herein'  required  and  enjoined  to  obey  and  give  elToct  to  this  ordinance. 
And  such  acts  and  measures  of  the  legislature  as  nniy  be  passed  or 
adopted  in  obedience  thereto. 

And  it  is  further  ordained,  that  in  no  case  of  law  or  equity,  decided 
in  tlie  courts  of  this  State,  wherein  shall  lie  drawn  in  (juestion  tlio  aii- 
tiiorily  of  this  ordinance,  or  tlie  validity  of  such  act  or  acts  of  tlic 
legislature  as  may  be  passed  for  tlie  purpose  of  giving  effect  thereto, 
or  the  validity  of  the  aforesaid  acts  of  Congress,  imposing  diitiej, 
Hlinll  any  appeal  bo  taken  or  allowed  to  the  Suprcnie  Court  of  the 
United  States,  nor  shall  any  cojiy  of  the  record  be  permitted  or 
allowed  for  that  ])ur|)ose  ;  and  if  any  sucli  ajipeal  shall  bo  attempted  to 
be  taliiii,  the  courts  of  this  State  shall  ])"oceed  tr)  execute  and  enforce 
their  judgments  according  to  the  laws  and  usages  of  the  State,  without 
reference  to  such  attempted  appeal,  and  the  person  or  jiersons  attompt- 
iug  to  take  siudi  appoiil  may  bo  dealt  with  as  for  a  contempt  of  the  eiiuit. 

And  it  is  further  ordained,  that  all  persons  now  holding  any  ollloe  of 
honor,  jirolit,  or  trust,  civil  or  inilitary,  uuder  this  State  (meinhers  of 
the  legislature  excepted),  shall,  within  such  time,  and  in  such  manner 
as  the  legislature  shall  prescribe,  take  an  oatli  well  and  truly  to  oliey. 
execute,  and  enforce  this  ordinance,  and  iiiich  act  or  acts  of  the  legis- 
lature as  may  be  passed  in  pursuance  thereof,  according  to  tlie  true 
intent  and  meaning  of  the  same ;  and  on  the  neglect  or  omission  of  nay 
8ueh  person  or  persons  so  to  do,  his  or  their  ollice  or  otlices  sliall  be 


■IM'.M'IX.]       I''II!ST    OKDINANTK    OK    N  CM.IKICATK  IN. 


U!tr> 


fdvtliuiili  v;ic!itoil,  iinil  sliall  lie  fiilod  up  ms  if  such  pci-Hon  or  porsoim 
wore  ilcnd  or  luid  rcHiiriicd  ;  and  no  iici-Mdii  liiM'caflcr  clcr'lid  to  iiny 
dlllci'  of  lienor,  [U'otit,  or  trust,  civil  or  military  (uicniliers  of  tlic  Icfiis- 
latini-  excepted),  shall,  until  the  lejrislaturo  Bliall  otherwise  j»rovi(le  and 
liiroci,  enter  on  the  execulicui  of  his  ollice,  or  l)e  in  any  respect  coin- 
p(t(  nt  (o  dischari,'e  tlie  duties  thereof  until  he  sliall,  in  like  manner, 
have  talicn  a  similar  oath ;  and  no  jurors  shall  be  empanelled  in  any 
of  the  Cduits  of  this  State,  in  any  cause  in  which  shall  he  in  ij'U'stion 
this  ordinaiici',  or  any  act  of  the  le^isUitun^  passed  in  pursuance  llicreof. 
unless  he  shall  first,  in  addition  to  tlu;  usual  oath,  have  taken  an  oath 
tli:il  he  will  well  and  truly  oliey,  execute,  anil  enforce  this  ordiiinuce, 
anil  such  act  or  acts  of  the  legislature  as  niaj'  be  jiasscd  to  carry  the 
same  into  openitiou  and  elT'ect,  accordinj^  to  the  true  intent  and  mean- 
in;^  thereof. 

And  we,  the  people  of  .South  f'arotina,  to  the  cud  that,  it  may  be 
fully  understood  by  the  jjovernment  of  the  liiited  States,  and  the  people 
of  the  co-States,  that  we  are  determined  to  maintain  this  our  ordinance 
and  declaration,  at  every  hazard,  do  further  declare  that  we  will  not 
suhinit  to  the  application  of  force  on  the  jiart  of  the  feiieral  govern- 
ment, to  reduce  this  State  to  obedience;  but  that  we  will  consider  the 
passage,  by  Congress,  of  any  act  authorizinj;  the  einployment  of  a  mili- 
tniy  or  naval  force  ap:aiiist  the  State  of  South  Carolina,  her  constitu- 
tional authorities  or  citizens;  or  any  act  abolishing  or  closing  the  ports 
of  this  State,  or  any  of  them,  or  otlicrwise  obstruotiiig  the  free  in- 
gress and  egress  of  vessels  to  and  from  the  said  ports,  or  any  other 
act  on  tiic  part  of  the  federal  government,  to  coerce  the  State,  shut  up 
lur  ports,  destroy  or  harass  her  commeree,  or  to  enforce  the  acts  hereby 
declared  to  be  null  and  voiil,  otiierwise  than  through  the  civil  tribunals 
of  the  count ly,  as  inconsistent  with  the  longer  contiiitiance  of  South 
(  ariilina  in  the  Inioii ;  and  that  the  people  of  this  State  will  henceforth 
hold  themselves  absolved  from  all  further  obligation  to  maintain  or  pre- 
serve their  politic.'d  connection  with  the  people  of  the  other  States;  and 
will  forthwith  proceed  to  organize  a  separate  government,  and  do  nil 
ulhir  acts  and  tilings  which  sovereign  and  independent  States  may 
iif  right  do. 

Done  in  conveition  at  Columbia,  the  twenty-fourth  day  of  November, 
m  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty-two,  and 
in  the  lifty-seventli  year  of  the  declaration  of  the  independence  of  the 
I  nitid  States  of  America.' 


■'I'restou's  Doeuinents  illustrative  of  Ainerieiin  Flstory.  pp.  ;i()0  303. 


20t5 


Si:CO>  [)    OKDINANCK    OF    NUU.IFrCATtON.      [CUAP.  11. 


AN   OHOINANrE  TO   NULLIFY   AN   ACT  OF  THK  CONOUESS  oi'  TllK 

TiNrn:i)  states,   ENTrn,Ei)  "AN  act  FruTiiEii  to  I'ltoviDi; 

FOU    THE    COLLECTION    OF    DUTIES    ON    IMroKTS,"    COMMdNLV 
CALLED  THE   FoUCE   HILL. 

We,  the  people  of  the  State  of  South  Carolina  in  convention  as- 
aomldi'd,  ilo  dccliire  and  ordain  that  the  net  of  tlic  Conjiivsn  of  the 
I'liilcd  StalcH,  ontitk'tl,  "  an  not  fiirtiii'i'  lo  piovide  for  tlie  t'oilcclioii  of 
duties  on  ini;)orfs,  approved  the  "ind  day  of  March,  ISIi.'t,  is  unaiilhcu- 
ized  by  the  Constittition  of  tlie  I'nited  States,  sidiversive  of  tlial  (  on- 
slitution,  and  deslruetive  of  ]iul>lio  liliorty,  and  that  the  same  In.  and 
siiall  i>e  deeiiu'd  null  and  void  within  the  limits  of  this  State;  ;iiiil  it 
Bhall  lie  the  duly  of  the  Le(;ishiture,  at  hueh  time  as  they  may  di'i'm 
expedient,  U)  a<l<)pt  such  nieasuri'S  and  ))asH  Bueh  acts  as  may  he  ncces- 
sury  to  prevent  the  enforcement  liiei'eof.  and  to  iiittii't  proper  ]utiailii'9 
on  any  p>'rsoii  wiio  shall  do  !Miy  act  in  executiim  or  enforceuiont  uf  i!ip 
same  williin  llie  limits  of  tl,i~t  Slate.  We  do  fiiither  ordain  ami  ili- 
clare,  that  the  aiieiiiance  of  the  citizens  of  this  State,  while  tiny  cdii- 
tiniie  such,  is  (hie  to  the  said  Suite;  and  liiat  oliedience  only,  and  not 
allejiiance,  is  due  hy  them  lo  any  otiu'r  power  or  auiiiority,  to  wlioiii  a 
control  over  them  has  lu'cii,  or  may  he  di'le;iated  liy  the  State;  iiinl  llifi 
(leneral  Assemlily  of  the  said  Stale  is  liereliy  eiiipowei-ed,  from  liiii'  to 
time,  when  they  may  deem  it  proper,  to  provide  for  the  adiiiinisin  lion 
of  the  citizens  ami  ollicers  of  the  Stale,  or  siicii  of  the  said  oilic  is  as 
they  may  thinic  lit,  of  suitable  oaths  or  alllrniations,  liindini;  them  to 
the  ol)servaiice  of  such  alleu:iance,  and  alijuriiit:  all  other  alle|_r;anee, 
aixl  also  to  detine  wliat  sliall  amount,  lo  a  violation  of  their  allcLriaiiec, 
and  to  ])rovide  the  proper  punishment  for  such  violation. 

Dour  at  Cohiinliia,  the  eijiliU'cnlh  liay  of  March,  in  the  year  of  oar 
Lord  one  thoiisMud  eiiiht  hundred  and  tiiirty-thiee,  and  in  tiie  tifly- 
sevcnth  year  '-i'  the  Sovereignity  and  Independence  of  the  liiitcd 
States  of  America. 

Hor.LiiT  Y.  IIavni;, 
Delegate  from  the  pai  ishes  of  St.  I'hillips  and  St.  Micliaels  —  I'lvsideiit 
of  the  Convention. 

Isaac  W.  Uaynk,  Clerk. 


ClIAPTKIl   TIT. 

TIIK   TIIUKK    DKI'AKTMKNTS. 


{;  4'2,  T\n'  Tliroc^  I>i>|>iirliii4Mits  of  tlio  <iitv«>i'iiin<>iit  ol'  llic  riiltnyl 

States. 

'riii;  f^oveninieiit  of  tlu;  I'liituil  StiiteH  is  dividud  into  tliii'u  grunt 
(li'|i;iitiiioiit.s,  —  tli(!  li'i,'isliitivi',  till!  I'xociitivu  and  tlic  judiciary.' 
Tlir  liist  inukt's  tlu!  liiw.s ;  tiic  second  curiit's  tlicni  into  I'il'iil ; 
iirni  till'  tliii'd  decides  idl  dispiilcs  In  wiii'  ii  (lu^y  give  oi-easioJi. 
These  (lt|iiu  lineiits  iiic  not,  iiowiiVer,  ii' solutely  iudepcndt'nl. 
'I'iie  exeeiilive  li:i.s  tli(!  power  to  interielo  ill  legishitiiili  hv  iiis 
veto,  uhicii  can  only  lie  overcoiiu;  liy  tiic  vole  of  two-tliiids  ot" 
fiuli  legislative  liousc.  'I'lie  ii|i])ci'  clianihcr  of  tlic  Icgislatiire 
ili.ieliaiges  executive  functions  in  connceliou   with   the    I'residcit 


!)  12.  '  •'  It  Is  l)olinvi-(l  to  tio  oiKi  of 
tlio   cliic'f   mi'iits    of   thn    Ainc'iii-iin 

XystiTIl  of  Wliltl"!!  (•OIlStllUtiOMlU  l.iw, 

timl  all  tho  poworH  Intrimtcd  to  tlm 
■.{oviTiirnoiit,  wlii'thcrSliti'oriintional, 
uro  (livlili'd  into  tlirco  ut'""'  li'ipi'it- 
miiits,  till)  (!Xi'(Miliv(>,  tlio  h't^lslalive 
mill  llic  judiciiil.  TImt  tlio  I'mn-tioii 
ii|i|'r(i|ii-i:ite  to  caidi  of  llicsi"  liniiic'lic« 
of  pivcriiiiu'iit  sliuU  liii  veslcil  in  n 
Hi'puriilo  Ijdilv  of  iuiIjIIc  sorvaiits,  anil 
lliiit  llio  iii'rfi'clioM  of  t!io  nysti'iii 
n'i|uln'H  lliat  tlie  lineK  wliirli  siimratu 
mill  (Ihiili-  tlii'Ho  (li'imrliiiciits  sliall 
t)0  liiiiiiill.v  ami  cloarly  ilollni'd.  It 
is  also  fssi'Utial  to  tho  sucwssfiil  work- 
ing of  this  HyHtniu  that  tho  persons 
iMitriisti'U  with  power  In  any  one  ot 
Ihi'Si!  liriinches  shall  not  he  jiennitlcd 
111  eneroaili  upon  tli(>  ]iiiwers  i-onliiled 
to  llie  (ilherti,  Imt  timl  each  slmll  by 
till)  law  ot  It.-t  i-reatlon  bo  limited  to 
till'  exeroiseof  tho  powers appropriaie 
111  its  own  (lepartiiient  and  no  oilier. 
To  tlieso  niMieral  pidpositimis  there 
lire  in  tho  l.'iinstitiiliiin  ot  the  I'liitiMl 
Stiles  cortulu  iiu|iortant  o.\eoptioi;s.' 


•2i»7 


Tlietio  oro  then  staled  siib'^lantially 
as  Mit  fonh  in  the  tixl.  (jlr.  .liLsliee 
Xllllor  in  Killioiirn  r.  Thoinp.son,  KKt 
U.S.,  1(;h,  I'.Hl,  1!)1.) 

"Oiiii  braneh  ot  the  KovornmenI 
I'annot  eneioaeh  on  the  doniain  of 
iinotlier  without  daiinor."  (Chief  Jiis- 
tiee  Waile  in  the  SinliinK  Fund  (!ase,>*, 
!i;i  I'.S.,  70l>.  7ls,  i|Hiiled  with  approv.-l 
by  Mr.  Justk'O   Harlan    in  t'loiij^li  v. 

Curtis  i:it  r.s.,  ;i(u,  ;t7i.i 

"Tiie  iiiai,il"nanc'o  of  the  svsieni 
of  ehoclis  and  baianees  elianieleri.'^iie 
ot  republiean  eoiistUiilloiis  rei|iiires 
thoeo-orilinutodepartnipntsof  tfoverti- 
luenl,  whether  federal  or  Slate,  to 
refrain  fioin  uuy  infriiiKOincnt  of  tin- 
independeneo  of  oaeh  other,  and  the 
possession  of  property  by  tho  jurtiei,;! 
depiirtnient  eaiinot  bo  arbitrarily  eii- 
criiaelied  upon,  savo  in  violation  of 
this  fiuidaiiiental  jirlneiplo."  (Chief 
.Iistli  (>  iMiller,  In  re  Tyler,  Mil  U.  S., 
ll'il,  1«'2  bS);  to  the  same  effeet  In  re 
Swan,  l.';(l  IT.S.,  (',;17,  li.'i'i.)  The  deei- 
sioiis  as  to  whiih  head  partieiilar 
powers  belong  will  bo  dlseussed  later. 


298 


Tin-;    TIIIIKK    DKPAUT-MENTS. 


[CHAl'.  111. 


upon  tlic  i-adfiufition  of  treaties  and  the  eoiiiinnation  of  ajipoint- 
nicnts  to  oilicu  :  and  also  judicial  functions  in  the  trial  of  ini- 
pcuchnients.  The  judiciary  has  been  constitutionally  vested  with 
the  power  to  appoint  to  certain  ollices  '^  wliich  many  consider  tn 
be  executive.'' 

In  the  main,  however,  these  departments  are  distinct  and  iivlc- 
jK'iideiit.  Hach  of  them  is  vested  with  powers  to  protect  it.s.lf 
a<,Minst  encroachment  upon  its  jurisdiction  by  the  other.  'I'lic  k;;- 
islative  may  ])e  checked  by  the  executive,  through  his  veto  powir 
and  his  po\v(tr  to  refuse  to  execute  a  law  which  he  considiMs  tn  lie 
unconstitutional.  It  may  be  checked  by  the  judiciary,  tluoiigli 
their  ])ower  to  refuse  to  enforce  unconstitutional  laws  and  to  i^jive 
I'clief  to  those  injured  or  threatened  by  action  founded  upon  Ihciii. 

The  checks  upon  the  executive  b}'  the  legislature  are  tlie  [unwr 
of  two-thirds  of  the  Senate  and  a  majority  of  tlie  lower  House  td 
renu)ve  him  by  impeachment,  the  power  of  a  majority  of  citlier 
house  to  withhold  the  payment  of  tlie  funds  needed  to  discliaraic 
his  functions,  and  pcrhajis  the  ])0wer  of  two-thirds  of  hotli  to 
prescrilie,  over  liis  veto,  the  manner  in  wliich  he  shall  dischiuifc 
his  duties.''  The  checks  upon  him  by  the  judiciary  are  tlieir 
])()wer  to  ordei'  the  punishment  of  any  of  his  subordinates,  if  not 
of  himself,  for  illegal  action  in  pui-suanco  of  liis  orders;  to  foilmi 
suoli  acts  wlieii  threatened,  and  in  certain  cases  to  command  iiiciii, 
or  pcrhiips  even  him,  to  obey  tlie  law. 

Tlie  checks  upon  the  judiciary  are  the  power  of  the  legislature 
to  remove  tlieir  members  in  the  same  manner  as  the  executive.  I>y 
inipeachiiieut ;  the  power  of  either  house  to  refuse  the  ajipro- 
j)riations  necessary  to  carry  on  their  business ;  the  po\>.  er  ef 
the  legislature  and  executive,  or  two-thirds  of  both  houses  witlmiit 
tlie  executive,  to  limit  their  jurisdiction  and  prescribe  the  mamuT 
in  which  it  shall  be  exercised,  except  in  so  far  as  it  is  jirotcfteil 
by  the  ("onstitution  ;  and  the  power  of  the  executive  to  refuse  Ui 
enforce  a  judgment  whicli  he  considers  unconstitutional,  and  to 
pardon  all  whom  he  thinks  were  improperly  convicted/' 

There  thus  exists  a  system  of  checks    and    balances,  viu  li  ol 

^Conwliliilion,    Arlicln    II,  Si'dion  <  Sen  .si/jim,  §  3S,  ovi-r  uolos  !M  und 

3  ;  Ex  jmrlr  Su-bolil,  KM)  IT.  S.,  ;!71.  0."),  and  infra,  cli.  XIII. 

"  Till)    Fcdcnilist,    Nd.    xlvil.     Soo  f'  .Iiiilgc  Frazior  was  ri'inovcd  iipoii 

tho  (ILscusmIou  of  this  (luestlon,  »'Ji/"m.  iinpeachmont  by  tho  Legislature  of 


§4;].] 


IirSTOKY    OK   TIIK    CLASSIFICATION 


iiliU 


wliicli  lias  been  used  or  threatcntnl.  dc'sigiied  to  preserve  the  ori- 
ginal form  of  the  Coiislitutiou  iiiicliaiiged.'' 

This  system  is  the  ])eculiar  cli:ii'acterislif!  nf  the  I'liited  States, 
and  has  estahlished  tliens  a  presidential  form  of  govei'iimeiit  as 
(listint^uisiied  from  the  cabinet  governments  w  hieh  usually  prevail, 
ill  tiicse,  the  legishitive  and  executive  funelions  are  both  exer- 
cised by  the  same  l)ody  wliieh  has  usually  ab.-olute  eoiitiol  over 
tiie  judiciary  liy  the  power  to  remove  tln>ni  and  appoint  their  suc- 
cessors ;  and  tiie  nominal  liead,  whetlier  called  king  or  president, 
has  his  power  rediiceil  to  a  shadow,  while  the  judges  are  power- 
less against  the  assaults  of  the  legislatui'e. 

The  importance  of  the  •iiaintenance  of  this  principle  is  recog- 
nized in  the  Constitution  of  the  United  States,  both  by  the  manner 
in  v.liieh  it  distributes  the  powers  granted  by  it,  and  by  the  lan- 
guage whicli  it  uses.  In  most  of  tlio  State  constitutions,  fnuu 
their  earliest  foundation,  tlie  principle  is  expressly  declared.  Thus 
the  present  Constitution  of  \'irginia  ordains:  — 

"  Tlic  legislative,  executive  ami  jndieial  departments  shall  bo  kept 
Hi'pieato  and  (hstiuct,  so  tliat  ni'itlier  exercise  tlie  powers  i^roperly  be- 
Iciiiiiiiig  to  either  of  tiie  others  ;  nor  shall  any  person  exercise  the  power 
of  mure  than  one  of  them,  except  as  hereinafter  ])rovidcd."  ' 

And  the  present,  which  is  also  the  first,  Constitution  of  Massa- 
ehusetls:  — 

"  111  the  government  of  this  Commonwealth,  tiie  legislative  depnrt- 
ineni  slialt  never  exercise  the  executive  and  judicial  powers,  or  either  of 
tJH'iii;  the  executive  shall  never  exercise  the  legislative  and  judicial 
powers,  or  eitlier  of  tliein  ;  tlie  judicial  shall  never  exercise  the  legisla- 
tive and  cxecniive  powers,  or  eitlicr  of  them;  to  the  cud  that  this  may 
I'o  11  irovernincnt  of  laws  and  not  of  men."' 


>;  4;j.    History  of  tlu'  i'lassUU-aticm  of  flov«»riiincntal  Powors. 

The  chvssilication  of  governmental  [lowcrs  into  three  is  as  old 
as  Aristotle,  but  the  iniiiortance  of  their  se[iaration  was  lirst  cx- 

'IVmii'ssco,  for  Ms  intorfi-ronee  liy  tho  cnsoa   (infra,   §45\   mid   tlii'    i out 

writ  (it  habeas  eoipns  with  the  action  iielioii  of  Coiiiiiliolier  Howler   in  ro- 
of till!  lower  lioaso.     (8eo  in/i,i,  5  tl-4,  fiisiuf?   to  audit  IIk-  wiirrtuil   for  liio 
nnd  Appendix  to  lliis  vohiiiie. )    Cases  iiayiueiit  of  the  su^nr  bounty, 
ofllic  i('fu!-iil  liy  llio  exeeulivo  to  eu-  i' Co  111  pure    Cooley,     Coiislilutioiiiil 
fiiri'o  (leeisions  wliieh   ho  considered  Liiiiilations,  (Uh  ed.,  pp.  45-47. 
UMciiiistiliitional,  were  Iho  conduct  of  '  Article  IT. 
Jailisuii   in   rcKaid  to  the   Ciieioiceo           ^  x'arl  Fir.st,  Article  XXX. 


800 


TIIK    Tinir.K    DKrAUTMKNTS. 


[fiiAi".  in 


pliiiiicd  I)}-  .M()iiti.'.S(|ui(;u.'  His  (^'leal  work  was  a  uu  op  ted  as  iiif;i! 
lihle  iiy  the  Icailers  nl'  llic  Ainei'icaii  people  tliroughout  tliu  IIl'Vo- 
lutioii  and  at  tiio  tiiiio  of  the  Federal  Convention.'''  More  tliau 
half  the  first  State  constitutions  contained  declarations  of  tlm 
importance  of  the  distinction.  'J'iie  rest  recognized  it  in  their 
structure.  The  lirst  constitution  proposed  for  Massachusetts  was 
rejected  partly  for  llie  reason  that  the  poweis  were  not  kept  sidli- 
eiently  aptut.'' 

The  llrst  resolution  of  tlie  Fe(lcral  Convention  was,  "tliuta 
national  governnicnt  ought  to  ])e  estalilishcd,  consisting  of  a  .su- 
preme legislative,  executive,  and  judiciary."'  This  was  adopteil 
by  a  considerable  niiijority.''  The  onl}-  contest  was  over  the  (pics- 
tion  whethei'  they  should  create  a  new  and  national  governnicnt. 
or  should  nieitdy  amend  the  Articles  of  Confcdei'ation.  Th-ic 
was  no  dispute  as  to  tlu^  tripintite  division  of  tlie  goverunieiit  if 
that  were  to  be  national  in  its  cliaraeter.'' 

The  Constitution  was  opposed  upon  the  ground  that  these  pond's 


^  i:\.  1  S'lj.m,  S  (1,  note  10. 

■-'  Supra,  ^  (i,  noLO  !). 

^  Tho  ro.isdii.s  (issifjiK'd  liy  the 
Cmnity  of  &si  .x  r.vn  coiiliiincd  in  ii 
pninphlt'l.  calli'il  'I'lic  K-.s.'x  HoMilt. 
liiilillslicil  ill  177S.  li,  ((iiilnins  tlio 
folldwing  liiiit,'ii;iyi':  "Tlio  lo^islulivo 
powoi'  must  not  1m^  IniKtod  willi  dim 
iissi'iubly.  A  .siimN^  iisHomlily  i.-;  fi'o- 
iiuciilly  iiilliii'iiciMl  liy  U\f  vicos,  fdllios, 
piissions,  find  projiidicos  of  nu  in- 
dividual. It  is  linldc  tolii'iivfu'icidus, 
mid  to  o.Noni]it  itfu'll'  fnnii  tlic  Iiiii'iIi'Mh 
il  liiyff  on  its  mnHlitiicnls.  Il,  is 
siil)j('i.'t  to  imiliition;  iunl  aftor  a  ei'iii'.s 
(if  yi};irs  \\\.'  Iio  pmniiilcd  to  voio 
ilsidr  porp(>Uiiil.  The  l,<iii<)  I'lirlia- 
mnil  in  Kti;;linid  voted  ilseif  perpetual, 
iind  tliereliy  for  n  lime  deslniyod  tlio 
IK.Iitienl  lilierty  of  tlie  sul>jeel.  Hol- 
liuid  was  jjovorned  by  one  repf<'sen- 
tativo  as.seiulily,  annually  elected. 
Thoy  nftorwiirds  voted  llieinselveM 
fr'im  annual  to  seplenuial,  then  for 
Hie;  nnd  llnaily  exerted  tlio  power  of 
lillinfj  up  nil  vaeaueie.'!,  witlioul  appli. 
eatioii  to  theirrousliluents.  The  };ov- 
ormuent  of  Holland  is  now  n  tyranny 


thmuih  (I  rcjiiililic,  Tlie  rofiiilt  of  a 
.siu^le  as:-einlp|y  will  In-  lue-ty  ami 
indigested,  and  llieir  judsnienls  fii'- 
(pienlly  uli.'-iu'd  and  irieuiisivtviil. 
TiKM-e  iiiusL  lieasecoud  bedyio  revise 

with   1 liies.s    and    wlt-dom    and  to 

contiol  with  llrnmess,  indepen.liut 
upon  tho  llrst,  eil.jiei' roi'llieirereaiioii 
or  existeiu'e.  Yet,  IIh)  llrst  niust  ii'- 
luin  a  I'ij^hl  to  a  similar  i  'vision  and 
eoiiti'ol  over  the  Boeond."  See  the 
New  Kn^land  Alaf^azlno  for  Jlaicli, 
18:i'2,  p.  1).  See  also  the  stateineiil  of 
thi^  I'oasons  tor  tlie  re,jeet,liin  of  this 
(^uistitiition  in  the  paiiiplilet  lilod 
HH/ini,  §  S,  note  7. 

^  Siiiini,  S  17. 

'■Six  to  ono  on  the  llisl  vc.te  In 
the  eonimitli'e  of  the  whol  ■.  Ni'W 
York  beiuK  divided  and  tlie  imIicm- 
Stales  abs(Mit.  Seven  Ut  three  on  tin' 
reeonsiiliM'.itioii,  Maryland  beiir.;  d.- 
vided,  ,S'i(y.i7/, !}  17.  over  noteso  luid  I*^. 

'■'■'.Vn  independenco  of  the  thn'i' 
!;real  depart  iiients  of  eueli  otle'r.  as 
I'ai'  as  po'^sible,  and  the  respoiisil'ility 
of  all  to  tlii>  will  i.f  tho  eonin"i:.:i^ 
seonicd  to  bo   ({''a^'rally  adnibtil  »- 


ciiAr.  in 
I  iis  iiifa! 

tilt!   Ut'VO 

iloiu  tli;iu 
lis  of  the 
t  ill  tlieir 
isetls  was 
kept  .sufii- 

S  " that  A 
[t  of  ;i  su- 
is  adoiitfd 
;  till!  (|iif.s- 
iverniiK'Ut, 
III.  Tli'ic 
.!rmnent  it 

,es(!  pouci's 

rofiiilt  of  II 
(   Iwisly  mill 

IjJlllOlllS    fl"- 

irii'iiii.-i-l"iil. 

ly  111  ri'visii 

Diu    :uiil   til 

lulrpi'ii  I!  ul 

ii'irii>;.:iiin 

st    IllU'^t    11'- 

■visioii  iinil 

KiMI     till' 

f(ir  Man-li, 
stali'iiii";!  of 

linn  (if  lliis 
ilihli'l,    liloU 


j-l-] 


CLASSIFICATIOX    OI'    (lOVKUNMKNTAL    roWKi;," 


301 


t,.   Ill 
.,1  ■,     N.'W 

ll,,'    olhiT 

Ihr iM  111'' 

li  lu'il;-;  il.- 
-,  iiii'l  1!<. 
f   Iho   lliivi) 

I'll    Olll.T.    Ill* 

's|»iiisil'ility 
(■omiiniii'l>i 

Ulllllll'.l'l    11" 


wi'i'ii'il  siinicieiitly  (listiurt  on  account  of  tin- executive  fmu  tioiis 
iri'.  ■;!  I  >  (lu!  Senate  and  tlie  veto  power  lodtjed  in  liio  I'residcut. 
T'l'S'  o!>j(.\:tion8  were  auswei'ed  in  the  ruderali-it  by  the  statement 
tliil  (lie  doctrine  only  meant  "  tliiit  where  the  wliole  [lower  of  one 
ili'iiartnieiit  is  exercised  by  the  same  hands  which  possesi  the  irJiole 
iiiiui'mf  a'.iotlier  department,  (lie  fuudauiontal  princijiles  of  a  fiee 
ciiii^iituliiui  are  subverted;""  that  thi.-i  was  s'lown  by  tlie  praeliee 
in  (iivat  IJiiiian  and  the  several  States;  and  that  a  certain  iiiix- 
tiiio  iif  fill!  powers  was  css(!ntial  in  order  that  each  miylit  be  alilo 
til  i;!];n-il  itself  ai^ainst  the  eneroachnieiit  ■;  of  the  otlieis.'' 

"Til!  Hritish  ('oustitntioii  was  to  Monte-qiiieu  what  Homer 
liN  liri'U  to  the  didactic  writers  on  epic  poetry.  As  the  latter 
li.iv.'  considered  (he  work  of  (he  iniiuortil  bard  as  (he  pi'rfcet 
iiiiiiji  1  from  which  (he  [iriiiciples  and  rules  of  the  epic  art  were  to 
111'  ih'iwii,  iuid  by  which  all  similar  works  were  to  he  judged,  so 
tliis  '^irat  po'iitieal  critic  ajipears  to  liavi!  viewed  the  Constitution 
cf  bu:;land  as  ihe  sta;idard.  or,  (o  use  his  own  ex;  ressioii,  as  (he 
iiiimir  of  political  liberty,  and  to  have  delivered,  in  (h"  form  of 
flriiii'iita;y  (riidis,  (he  several  characteristic  2>''i'ieiiil'.'s  of  that 
li;iilii'i;lar  system.'-'"  In  tlie  century  ■which  has  since  elapsi.'d,  by 
till'  rirm  establishment  of  a  system  of  cabinet  <rovernmeut  in  (ireat 
lii'itaiii,  the  legislative  and  executive  jjowcrs  have  become  blended. 
'•W'c  have  thus  an  extraordinary  result.  The  nation  whose  (!on- 
.stitutioual  practice  suggested  to  iMonte^cpiieu  his  memorable  niaxinx 
I'nn  cniiiig  (he  exeendve,  legislative  and  judicial  powers,  has  in  (he 
ciiur-c  of  a  ccnfury  falsilieil  it.  The  formal  execudve  is  the  true 
.Noiuce  of  legislafion,  (he  formal  Icgisladire  is  incessai.tly  concerned 
with  executive  government."'"  And  this  practice  has  gradually 
siM'iail  into  all  countries  where  civil  liberty  is  enjoyed,  except  a 
tt'w  like  (icrmany,  in  wliicli  there  is  still  a  conflict  between  the 
I'liiuii  and  th(!  people,  and  jierhaiis  two  or  three  emintries  in  t'en- 
tril  ;i!i.!  South  America  besiiles  the  United  States,  where  the  jires- 
iilt'iitial  form  of  governnu'ut  j)revails. 

A  few-  of  tlio  later  writers  on  political  science  are  now  disposed 
tin|ii(stion  the  soundness  of  the  doctrine  of  iMonlesiiuieu."     Here, 

111''  liiiii  liiisis  of  a   \v(>ll-r()ii-trii''lfil  »  Madisim   in   Tim  ri>(l»>ralisl,    No. 

K'lvrnuiii'iii."     iMailiwm  Paprrs,    Kl-  \\\l[. 

lidt'a  DclialcH,  'Jd  cd.,  vol.  v.  \<.  3'J7.)  '"  Maiiip,  Poimlar   (tovorniiii'iit,  p. 

'Till.  Fnloralial.  No.  xlvil.  239. 

'  It'lJ.,  No.  xlviii.  "  "  The  separation  of  tho  exocutive 


302 


TUK   TllUKl-;   DEPAKTMKNTS. 


[chap.  111. 


liowmer,  there  are  no  .signs  of  its  iibamlonnieut  I)_y  tlie  iicopk'; 
1111(1  tlie  wi.sdoiii  of  the  cliaiig-es  elsewhere  it  reuiiiiii.s  for  tlie  iiuiuv 
to  (leteriniue. 

B  44.  Itcasons  for  the  Separation  of  the  Throe  Powers. 

'I'lie  rea.soiis  assigueil  for  tlie  separation  of  the  letjislative,  ex- 
eeiitive,  and  judiciary,  are  that  they  cannot  he  iM)iiiliined  wiliiimt 
the  ereation  of  an  arbitrary  govei'iinient.  That  tlie  authority  to 
make  an  art  a  crime,  to  eoiulemn  for  its  eonimission,  and  to  cxi- 
cute  the  seiiteiire,  wlien  united  in  a  sinj^Ie  man.  make  liiiu  ;i 
desiiot,  and  that  human  passions  an;  too  strong  to  kee[i  hiiii  finiii 
an  alaisivc  use  of  siudi  stri'ngtli,  are  universally  adniitt(!d,  without 
the  need  of  any  reference  to  liistory.  'J'hat  when  tliese  poufi^i 
are  vesteil  in  one  hody  of  men,  tliat  body  usually  degeneratis 
into  a  mob,  unrestrained  by  any  considerations  of  justice  or  mod- 
eration, is  less  generally  recognized,  because  the  instances  iiie 
rarer;  but  it  is  usually  eoneede<l,  not  onl}-  liy  students  of  tlit^  iiis- 
tories  of  the  democracies  of  (ireece,  but  liy  those  who  have  iii;y 
knowledge  of  llie  ]iroceedings  of  the  1-ong  Parliament  and  tlio 
National  Convention.  Their  excesses  are  tlie  things  which  li;i\i' 
liionglit  discredit  upon  governnu'iit  by  the  people.  '1  hey  iMiisrd 
the  reactions  which  set  up  innumerable  tyninnies  among  the  iiii- 
c.'.'iit.-;;  which  restori'd  the  Stuaits,  and.  when  tlicy  were  aijaiii 
e>  pelled,  made  the  English  nation  iniiiort  foreign  kings ;  wliicli, 
„wice  within  the  century,  have  made  the  French  people  voluntarily 
submit  to  an  emperor;  and  wiiicli  make  many  of  the  most  iiitclii- 
gent  of  our  own  day  still  believe  that  no  rejuiblie  can  endure. 

'J'licse  dangers  weie  observed  and  descriiied  by  Mont' siiiiirii 
before  the  history  of  his  own  country  reinforced  his  iliustiatiniis. 
And  the  continual  eiicroaehments  which  those  vested  witii  'W 
jiower  seek  to  make  upon  the  others  are  even  more  apparent  iiow 
than  then. 

In  earlier  times,  the  executive  was  the  strongest,  lie  in  iiinst 
countries   suiieeeded   in  destroying  the  legislature,  and  made  the 

power  from  tho  li'Rislativo  is  .'t  drcviiii,  p.  fit,  (inolcil  tiy  Doulro,  ro'isUliainn 

thoiiKli  Moiilowpiicu  Ims   PKtJililislicil  of   C'aniidii,  p.  GH.)     Si'o  nlso  Wil«iiii, 

tlio  liclicV  Hint  it  1h  ono  of  tlio  fjrcnt  Conwri-Ksloiiiil  fSovprniMi'iil,    pp.  '-'•'<"). 

Focuritirsof  lilicrl.v."  (Oolilwiu  Smith  HOC),  ;U1;  Hti'vciis,  Hoiirccst  of  tlic  Con- 

in  Tlio  li.v.stuudor,  Toronto,  May,  18H0,  stitutlou  of  tlio  U.  8.,  1st  cd.,  p.  17. 


^^■'■] 


KQUILIIIRIU.M    OF   TIIH   TU.    ;K    DKI'AKTMKNTS. 


303 


jU'lkiiUT  .snhsorviont  (o  liis  will.  In  HiiiopL".  (hiriiitr  tlie  iiiiio- 
ti'L'iilli  ceiituiy,  tlie  legislatuics  have  Ix^eii  tliu  iiivadeis.  'I'liroiif^h 
tlicir  iiowcr  to  I't'luse  siip{)lit'S  to  cany  on  thu  ucoVL'ininL'iit  tlicy 
line  nearly  cveiywliere  destroyed  the  autliority  of  the  execiifivi:; 
iiiiil  in  those  eouutries  wlieie  they  have  the  power  to  reniov(^  th(! 
jailiiiaiy,  they  must  inevitahly  prevent  its  imposing  any  ohstrne- 
ticm  to  tlie  innnediale  aeeomiilishment  of  their  arl)iti'ary  will. 
In  the  United  Hlates,  the  (liiee  departments  still  remain,  eacli  in 
full  force,  as  cheeks  and  halanees  ui>oii  eaeh  otiier;  and  (Mpii- 
libriuni,  with  a  few  variations,  seems  to  have  i)'.'en  maintain  ■(!.' 


$!  -i.*).    IC(|Uilibriiiiii   of  tlic^  Tlirvo   I><>|»ai'tnieiit.''    in   (Ik;   I'liited 

States. 

Of  the  tliree  departments,  the  strongest  is  the  legislative,  and 
the  weakest  the  judiciary.  The  legislature  has  the  control  of  the 
jan-se,  and  ean  starve  the  other  two  hy  refusing  them  the  sniiplies 
with  which  to  carry  on  the  government,  or  even  to  snppoit   liieni- 


Tlm  executive  has  the  jiowcr  of  the  sword.      He  can  c( 


ni:ni> 


til 


e  army  to  comp 


■1 


ooeilienei; 


to  !i 


ill.     I5v  tl 


nis   means. 


in  fiiinu'r  centuries  in  l",iiro[ie,  and  in  paits  of  South  and  Ccntial 
.Vinerica  to-day,  that  department  has  al)sorl)L'd  most  of  the  functions 

■ly  tlie  power  to  register 


if  til..'  other  tv 


Tl 


e  ju'.ticiary  has  mere 


■h. 


its  d,' 


DHlv  en 


witii  a  declaration  of  the 


ItMSO 


ns  for  its  action.     It  can 


I'liree  them  by  the  aid  of  an  executive  ollicer. 


Congress  is  eliosen  hy  the  [U'o[)le  at  hiennial  eh'ctions,  so  that  a 
iiinjoiity  of  the  lower  house  nearly  always  represents  the  i)e(. pie's 


Tlie  V 


resM 


lent  is  electc(l  cvi 


fc 


veais  liv  what   is   ii 


I'ffiM'l  a  direct   popular  vote,  and  consc(pienlly  nearly  always  rc[)- 


ri'sen 


ts  tl 


u;  wishes  o 


f  at  least  a  lai'LTc  minoritv. 


T 


jllilge; 


appdiiited  i)V  the  I'rcsidi'Ut  and  Senate,  and  hold  olliee,  unh^ss  im- 
lieaclied,  for  life.  So  tiiey  may  represent  the  opinions  of  a  pir;y 
wliieh  hiis  passed  out  of  existence,  and  have  no  .sympathy  wil'.i  thu 
pivvailiiig  <loetrines.  Yet  they  have  had  many  conflicts  wit'.i  the 
other  departments  of  the  goveniuient,  and  in  all  but  hair  have 
triniii|ilK(l.      'i'hrco  of  these  were  with  the  execiitive  with  whom 


§  II,  '  Siv,  howovcr,  5  •!■">.  nolo  11.        .Iiuliiiiii'Mls  of  tlie   Slato   foiirt.s  lira 
SI").  '  Tlio    iiiarslinl,    wlio    in    up-       ii^imlly  cxcviili'd  liy  the  slicrilT,  wlio 
Jiinntwi  by  tlio  I'msidonl  iiutl  Souate.       i.s  im  oloelivi!  county  olUecr. 


?.04         EQUILIimiUM    OF    THE   TUHKK   DKI'AIiTMI^NTS.     [ni\!'.  H!. 

tlio  locrisliitiiro  was  in  sviii]);itliy :   tlic  C'lirrokct's"  ciises,  wlioiv'  ilie 


]' 


ri'sidcnt,  siilc<l  wilh  tlic  State  of  (icuriria.  and  ivI'iiMrd  tn 


t'liiurci' 


tlie  I'uJeral  process;*   Menynian's  case.'' wla-rc  t'le  aiiny  ivl' 
(o  obey  tlu^  writ  of  halxMs  i-ornu 
i:i  wliirlu   however,  there  w; 


IS  issued  hv  ('liief-.Iustiee  'i' 


iiseil 
ini'V, 


iirissed   eoneiirreiiii? 


in-  1. 


judicial  lnvthi'i 


ud  tile  Legal  Teuder 


•re,  1)V  til 


'!'■ 


]ioiiitine!it  nf  two  new  justiees,  he  olilained  the  overrulinij  el'  ;i 
di'eisio;!  tliat  a  former  aet  was  uneonstitulional;'  The  fouilli  \v;is 
with  the  lej^islalive  alone,  tiien  in  eonllirt  witli  tlie  I'resiili'nl.  hut 

l:;rL;\'  that  it  had  the  power  of 
le  MeCardle  ease  a'riiiist  the 


ill 


wiin  a  i;ia|onty 
iiieiU'hnient 


tv  of  the  leL'islatnr; 


in 


constitu; 


when  a  (le:-ision  in 


luniiiiv  ( 


if  the   UeeonstiiU'iiou  acts   was  prevented  1)V  a 


repeal  of  the  statute  wliieh  gave  t!:' 


)urt  jurisdietiou; 


All. 


tl 


ie.se  eases 


but  the  first,  liowever,  were  in  li 


)f 


iiiuis  ot   war,  or  iiunie- 


diately  after  the  (dose  of  war,  duriiifr  what  was  practically  a  time 
It  ion."     The  judielary  has  since  rejiained  its  streiiLjth  and 


)f 


.oil 


courauc 


and  now  tl 


le  jiirisdu 


tioii  exercised  hv  llu;  State  as 


the  l'\>deral  courts  without  (piestion  is  crreater  than  that  previously 
I'.'posed  ill  any  Irihunal  in  the  world.  The  last  volume  of  the  re- 
ports of  the  Su])renie  Coui't  of  the  United  Stites  contains  the 
record  of  their  siicee.-i.iful  assertions  of  c;reater  power  to  inti.>rfeie 


wi 


til  the  civil  administration  of  tlu^  Statt 


am 


1  with  the  taxiiii' 


power  of  ronj:fress,''  than  was  ever  exercised  hefore. 

So  elsewhere,  the  executive,  wherever    civil    liberty  has   pre- 
vailed, has  been  \inable  to  resist  the  assaults  of  the  lejiislaliirc,  ami 

ry  been 
le  people's 


lie  threat  to  withluiid  the  supplies  has  in  the  present  eeiitu 


■du 


lei'ii's  to  (^omp(d  ac<puesceiieo  in  the  wislies 


if  tl 


representatives.' 


{'resident  Johnson  was  similarly  coerced  in  lii.s 


onilict  with  ('onpfiess,  and  compelled  to  assent  to  an  appropriation 
lill   with  seitions  which   infrinrred   the  constitutional  powers  of 


-  Wiin'cstor  v.  (ii'iir<;iii,  (>  Peters, 
ril5.  Tliia  will  htt  oxplaiiieil  later 
under  I  lie  .Iinlieliil  Power. 

"  Kx  pnrlr  Merryiiiiiii,  Taney,  'itCi. 

*  Letjiil  Toiuler  Cises,  Kno.x  r.  Lee, 
12  V/;ill.,4.57.     See  in/rn. 

'' Kx  parte  MeCiirille,  C,  Wall.,  31«; 


0  Siiitrn.  S  3H,  over  noti>  202. 

'  In  re  Delis,  l.-,H  IT.  S..  .V,t. 

*  Piilloek  r.  Fiiriuers'  Loan  nnd 
Trust  Co.,  l.".H  V.  S.,  ('.(11. 

"  Thoro  nre  two  njiparent  excep- 
tions:  Prussia  in  1800  nnil  Derniinrk 
nt  the  present  time;  tint  It  ean  lianlly 


s.  c.  7  Wall.,  50G  ;   supra,  §  ;18,  over      lio  said  that  civil  liberty  then  existed 
nott!  179.  in  either. 


.]  EQUILIBRIUM    OF   THK    TIII!i;i-;    Itr.rAIITMKNTS. 


!!):■) 


liis  oilicc,  and   the  reserved    riglits   of    the    States, 
evil',  was  never  chosen  hv  tlii 


lie,   li 


1" 


vu-c 


piv 


-ident   elevated    liv   th 


tple  to  ho  piesicU'nt,  l)Ut  \v  is  a 
■t;)l   of    an    i'.ssnssiii  ;    ;ind   mii- 


st'i|U(iilly  had  not  tlie  ]inl)lic  ciiiilidi  iice  r('])os;'d  in  an  oiliccr  \vl;o 
ilisili;ii'L;'i'S  dntii'S  whirli  the  i)i'ii[)le  havi-  eh'clcil  him  to  jici'foi'ni. 


Wli 


111  a  sill 


iiUar  atteii.iit  was  made  to  fori 


re   one   of   his  SU' rrssoi's. 


to  siL,Mi  a])]irii[)!  lation  hi 


Ih^ 


itli  ell 


uises  fontanilliu'  h'u- 


I. nil  I 


f  wlili  h  lie  disapproved,  the  I'lesidiMit,  althoiii^di  the  pievi 


DiiLiref 


had  refnsed  to  \ote   tlie  neede 


d  supplies,  retiiriied  h 


11  Iter 


hill  with  veto  niessaLres:  threatened  si 


ircci 


■tive  extra  :;e 


iiiilil  the  jTovernincnt  received  the  funds  iieees-arv  for  its  iiiaiii'e- 
iiMiirr :  and  after  a  protracted  strnjfL,de,  puhlic'  opinion   eonipell'   I 


itiire  to  vield. 


'Die  P 


resident  ol 


the  I'liitt 


I'Xi'l'ClM'S,  Wl 


th  the  a{)])roval  of  the  jieople,  more 


>titiitional  !■ 


!<iiiLr  11 


1  the  world.     No  I'lvsid 


eiii   iiiis  p:i 


spi 


•t  to  the  Avishes  of  Contrress  than  (irover  ('lev( 


■^tates  nn'.v 

■  tlu'.n  any 

id  less   h'- 

aiid   diU'ir.i'' 


lintli  his  administrations;  and  tin 


iple. 


Hell 


tl 


lev   e 


h 


<iiiiiit  for  hi.s  second  term,  .sitrnilled  their  siitisfact 


11)11  ^\ 


it!; 


■I.     \'et  at  the  same  time,  in  inatteis  which  appert;iiii'd 


H'lr  iiroviiice 


he  1 


las  mor 


e  tlian  once  heen  ohliued  to 


yn 


hi 


mil 


uioiis  to  \]h'  lc<rislativo  will.     Thus  at  tlie  end  of  the  ccntii  \' 


we  iiiid  tint  the  three  <h'partments  still  retain  their  halaiiee. 


ith 


prei()gati\es  uninipairec 


''  11  SI.  ill   L..  |>.  ISi;;  Miiiini,  !}  :1H, 
owninti'  OJ. 

'•  SiiMM'  will  ITS  iiiuliiUiin  thill  Cmi- 
(jri'-^s  lias  (•iiiTDacht'il  permuuciiUy 
llpiiil  till'  li'.lli'P  (li'ii.-irtllirllt'-'.  S('i> 
Uul^v-y.  W.'lstrl-,  ]..  iM):  ('■■lltnillilll 
Aililnss  or  III-.  Jiistird  Milli-r.  I'ro- 
fos.-iir  W(»iilri)-,v  Wilson,  iilso,  In  liis 
iiili'iTsiinn  worii  on  Coiij^rcssioiiiil 
Ciivi'niiiiciit,  cliiinis  tlwil  Uii>  iloi'triiio 
ot  111.'  iiiilcpiMiiliMU'O  of  111!"  tliri'o  di"- 
|iiirlini'iil.s  is,  liorrowipi;  Uii>  wonlsi  of 
Biiid'luil,  "llic  litiTiiry  llioory  of  tlio 
Ciiiisiitiition";  iind  timl,  in  fact,  Con 
liri'^s  is  siiin-cnio  (\<it.  10-12,  30-40  iiiiil 
I"w.ii'm'.  Hi'  citcn,  howi'vor,  no  in-oof 
of  tliis.  cxi'oiil  tlio  legal-tomlcr  cases. 


Hi)  iiiliiiits  llial  till'  poH-iT  of  Coiiurrr  s 
over  cnliinct,  oflt  ITS  is  Irs..,  now  i!i,  ii 
at,  (111'  iiiHti'ii'.ioii  ol'  th.' !.;iivi'r:ii;ii'iit 
11.  "J."'?  .  11  ■  savs.  coiici'riiiiv;  il  ^  (  o;'- 
irol  oviT  till!  aiiiiiiiiistnitioii  (p.  '>'l  : 
">(',,., .;|.|..s  Htaml.s  iihrosi,  h,  ipl.  s'-!v 
oiilsiilo  of  llii>  ili'ptirliMi'iils:  "  iii'd  ( ]'. 
'I'.)'):  "TIcM-o  isnosii'iil-ir  li'L'lsl.itiiin 
in  I'Nistciii'c  wliirli  is  .so  .-hiiL  iipto  tin' 
oiii"  liiisiiicss  of  Iriw-niaUiii;;  as  is  onr 
('oiiv;i-i'.-s  "  i  si'c  also  pp.  atl'J  ami  Ull .. 
.\iiil  his  whole  work  seems  to  lie  a 
\  it,'oriiiis  arf^imieiit  in  fiiMir  of  j/ivinn 
to  ("oiigrosa  power  to  break  down  the 
oxeenllvo  ratherthan  a  demoiisl ration 
of  the  position  that  that  power  lia.s 
been  already  obtained. 


CHAPTER    IV. 

CONCiKKSS    IN    (iKXHHAL. 


5^  4<J.   l^iiniloU  I'owors  <»('  Coiiifross. 

Till':  k'f^isliitivf  is  tlu'  most  powcrl'iil  mid  the  niost  importimtof 
this  three  (l(']);iriiiiciits  ol'  llic  '^overiiniciit  of  lliu  l'iiil('(l  Si  UfS. 
.Vct'didiii^ly  ii  (U'S(ii|)ti()ii  ol'  this  is  coiitaiiuMl  in  the  liist  Ailicie 
III'  the  ('(Ui-ititiitiuii,  wliicii  Idllows  tiie  I'reMiiihle.  Tlie  lirst  sei> 
tidii  reads :  — 

••  All  li'LrislMtive  Powers  heiciii  ij:i;iiiti'«i  shall  he  vested  ill  a  (,'()ri;i:ri'88 
i>(  the  I'lutfd  Stiili's,  which  shall  eo!isist  of  a  Senate  and  House  of 
li'si'Mlatives." 


O))- 


'I'he  lirsl 


(Is  of   the  artiile  clfaliliL;'  Coiiijress  show  tlial    the 


liowel's  lliel'ein  "'la 


iiti'd  arc  limited  and  not 


ij-eMeral 


Tlie  to 


d!  h'L,dslalive  I'owers  lierein  granted,"  renui'ds  hotli  the  Coiil.ni'SS 
id   tin;  people  ol    tlie  existence  ol'  some   limitation.      The  iiiin> 


diiction  disjilays  the  <4'eneral  ohjiH'ts. 
iiici'ates   some    of  the    powers   of  ('oiiM-rcs-i 


The  ( 'oiistilulion  it-ilf  cim- 


whiid 


1  mieiit  pei'liaps  fall  within  the  ^-ciiei'al  expressions  ol  the  ill 


'X(diides  (illii-rs 
)f  till 


Irodiietory  pai't.  Tlie.ie  in'oliiliitioiis  are  in  some  dej^ree  auxiliiiry 
to  a  due  eonstriK  tion  of  the  ( 'onsiilntion.  When  a  jreneral  power 
liver  certain  ohjeels  is  graiiicil.  aeeompanieil  with  certain  exeeji- 
lions,  it  may  he  considered  a-;  Icaviiii^'  that  e'eiiei'al  power  uiaii- 
liiillisheil  ill  all  tiiose  respects  wliicdi  are  not  thus  exei'pted.  " ' 


It  is  V 

•ant  of 


■tiled  that  the  ( 'oiistitiilioii  of  the  riiited  St  ites  is  a 


powers;-   wiii'reas 


tlie  State  eoiistiliitions  are,  so  far  a -the. 


State  h'nislalnres  are  eoiieerned,  limitations  of  liowel's  pn 


iiisly 


CXlstlllL 


S-I'l 


Jlicvlc 


('   cm    IIh^    e'nilslil  lltidll. 


(lel.v.iti'il  "  in.-!(\'i<l  ef  "cvaiil- 


11.  '211.     For  the  ilisiaissioii  ef  a  similur      eil  "  (Hitpra,  S  • 


iieslidii  iiailiT  the  Fcclcnil  ('uiislilii- 
1111  iif  17'.l."i.  ■•^ee  Meliiiiiri's  do  li.uias, 


V.  S.  |i.  Crii 


lU.-iiaiiiv.  ii-  r.  s,,  rAi, 


"il;  Tiiidi 


irii  Ci 


1(1(1  I'.  S,.  ,S3, 


Vdl.  ii,  lip.  2(1  'i.l.      Ill  the  ('oiifeileriite       <Xi. 
Coiistitiltlon,  till'  pciwers  <if  Coiij^re.ss 

:iOG 


■'Oliid   Lil'o   Iiisiiraiici 


id    Trust 


^17.] 


OKKIIN   OF   CONCRESS. 


SOT 


8  47.  Origin  »f  Congress. 

The  iiaino  of  Conf^ress  was  takt'ii  from  tliat  of  the  body  wliich 
|,iiirili'il  and  fontimiud  uiidei'  tlio  Arlicles  of  Confederation;  but 
ihnv  is  no  analogy  between  their  functions,  and  the  source  of  the 
liiisfut  institution  is  far  difi'crcnt  as  well  as  distinct  from  tliat  of 
it^i  incdeucssor.  The  Conlinentid  Congress  and  that  which  sat 
under  tlie  Articles  of  Confederation  were,  in  theory  at  least,  what 
ihrir  name  denotes,  gatlicrinj^s  of  and)assadors,'  aUhough  in  fact 
lii(  V  exercised  considcralile  le<(islative  ]K)wcr,  which  they  usually 
ili>:;iiiscd  by  tlie  terms,  recommendations  and  ordinances.-  'l"he, 
lircscut  CenLjrcss  of  tlic  I'nited  States  is  a  national  legislature, 
;iiid  its  sonree  may  lie  traci'd  throunh  (lie  IJritish  Parliament  to 
llie  iiieetiiigs  in  tiie  woods   of  (iermany  desciibed  by  Tacitus.-'' 

Tlie  form  of  governnieiit  which  prevails  usually  in  luimitive 
('(iniMUinities  comprises  a  l^ing  or  cliii'i',  a  senate  or  gatlierin<T  of 
eldiis  or  selectmen  with  whom  he  lonsuits.  and  a  jiublic  assend)ly 
111'  all  freemen  with  the  right  of  suffrage,  who  dtjcide  questions  of 
inipnrt.ince.  whetlier  legislative,  executive  oi'  judicial,  which  arc 
siiliminid  to  tiiem.  This  naturally  arosi!  from  the  couiieiLs  of 
war.  wlicre  the  general,  after  consulting  the  imue  experienced,  took 
tlie  sei:se  of  the  wliole  body  of  waiiiois  lirbire  an  imjiorl  iiit  en- 
teiiirise.  Such  a  legislative  asseudilage  of  the  whole  people  may 
sliil  hi'  seen  once  a  year  on  the  'I'ynv.ahl  in  tlic  Isle  of  Man,  in  this 
Swiss  cantons  of  I'li,  rnterwahleii,  (Jlaiais  and  Appeir/ell;  and 
iimre  licipicnlly  in  the  town-meetings  in  Ni'W  ICngland  and  tiie 
Western  States.  In  Switzcrlaml  the  \ntt'i>;  still  follow  the  early 
lastiini  of  attetuling  armed.'  <>!'  siicii  a  chiriclcr  were  the  fed- 
ir.il  assemlilies  of  ihe  .Achaian,  Aetolian  and  I.^■(•ian  Leagues,  whiih 


('■I.  r.  ricl,.>U,  K;  How.,  tli;,  1:W  ;  Pi-alt  r. 
Allni,  l:!C(.nii.,  li;),  V>r, :  l'ro|.I(>  ,:r  rrl. 
M-Ii.'iial.l  V.  Kci'Icr.  'all  N.Y.,  M:i.  IT'.i. 
5  17.  >  riiicf  Justice  Miir.sliiiil  in 
Gilil.diis  r.  Opl'Mi,  i)  AVIioiUon,  1.  1^7, 
Miic'imI  supra,  §  li,  over  note  '2'S:  .loliii 
Allium  iilso  expressed  lliis  ojiinioii, 
liilt  JelTeivoii  (lisaj^jreeil  to  ii.  See 
Woi-i;s  of  Joliii  AdiiiiiM.  \ol.  viii,  y. 
4;i:i;  •Ien',.|'.soii'H  letter  tojoliii  Ailniiis, 
Fi;li.  ii,  I7s7,  JolTertJoii's  Works,  vol.       lisli  Coiislitiilioii,  eh.  i. 


ii,  p.  I'.i'i,  (luoleil  ill  lli'.;elo\v's  note  lo 
Sioiy   on   the  Count ilulion,    'Ah   e.!., 

-  Siiiiri.  S  ■_'(;.     ,Soe  also  ^    CJ.   rolo 

a. 

■■'■•('e  lieail  systen:e  iv  ele  IroiivC- 
dims  le'i  hois."  (Xlolllesiinlell,  L'Rs- 
l>rit.  des  Lois,  tome  xi,  ell.  \  i. 

■•  Sjieiirer,     rolilieal      Iiistiiiitions, 


S  I'll  ;  I'l 


mail,  (Irowtli  of  the  Eiig- 


no8 


C'ONCKKSS    IN    CKNKKAI,. 


[I'n  \!'.  IV, 


iMcli  ciiizL'ii  liad  a  right  to  attend,  altlioujjli  tlicy  vot'd  In  i  ui.s.' 
'riicy  wen'  tuanifcstly  iini)ra('tical)le  wlu'ii  a  j^'ovithiiiciiL  w  :s  s[irr;;,l 

III'  i'f[ii'c-;(iuili\ .'  iii<ii- 


over  an  extensive  territoi", .  and  to  tlie  l;ielc 
Intiiins  lias  heen   a:  I'l'ilu'ii  tlie  loss  ot'   liiierlv   in  <ii'( 
ll 


I'lie  senates  ol'  llu  se  e'>iil'ediTalii)i;s  si'i'm  In  iinvr  lie'-n  enrMjiscd 
i>l'  tile  j)resent  and  i'nrnu'i'  niai;istiat,'S  of  tlie  dilVerenl  eiliis.  wlm 
;(i'ted  laliier  as;  ainlias>  idms  tiiiin  !etji-.lal(iis,  and  \i!.'d  I  ly  cities, 
i/aeli  lia\  inn'  an  eiiual 
|)(>li\ilatinn." 

Siicli   nntlielintfs  nf  ;ill    iVeeiiieii    ti>  dreiile  (i ilestinlis  .-idiniilli 


■dl 


ITer( 


\iil''c  I'eijaMiless  (ll   ilillerelie.s  ;M  wmI:  li  iilii 


id  llieiii  1)V  llieir  kinus  e.ii 


d  a  seie>.|   1 


M)ii\-  (ll  iiiy,  advisers  v.'cr^'  c'.ls 


Idiir.irv  anidiiL;'  llie  'ierinaii  trilies  wlios  ■  (ieseendaiit^  (■'.iKiiicrcii 
l']ii.t;land  and  North  Aiiiei  ie.i.  'I'lieii'  liiiij'.s  tu'eni  to  lia\>'  liiid 
certain  hei'cdit'iry  ri^li!' i   liiii  ilieii-  liic:il 


ni.e'islrnles  wel'i'  el."ct( 


and  with  tiieso  \wiv  joined  certain  coiii|i mioiis  or  assi>t.inls.'  I'lio 
companions  were  the  pintot;.  jies  oi'  the  assistants  in  the  colouii'S 
and  of  our  jucsent  nu'i'iicrs  ol'  ( 'oin^'riss. 

The  wars  dnrin;.^  the   aiiijiiu'iitid! 
tiou  of  the  dilYerenl  trilies  into  u 


of  Mnijl.ind  and  the  consolidi- 
ill'.;]!'  nioiiiirchv  stientrtlitau'd 


till'  jiowers  of  th(,'  kin;.;'  ;;lid  tlie  class  of   iioliles  who 


arose,  s 


0  that 


tl 


le  iioweis  ol 


the  latl 


cr  iK'caiiic  HI  liv, 


Ih 


tile  niriuer  iii 


■'■  I-'r-rciiiini.      Ilij-I(irv      of     I'lvler:!]  lllinl    ex    lilniialc   viiitim,   (|ii(iil  ii<im 

iliiviTiiiiiciil.  niniiil    ll'-.'    1:1    jii-si    ('(iiiv.Miiiiiil,   si'il 

''  Iliiii.  (it   iillii'   ('I    ii'r;r:K  ilics    ((UislatidiM' 

T  ..  2j,.jf|.s   px    iiiilMlitati'.  (luces   ex  (•iictiritiiiiii  ali- (U.iiliir.     Ui.  liirlm  [ilti- 

vlrliiic  seiiiiiiM.     Ncc  rci^iliiis  iiiliuil 


:i       ciiil. 


(■(iiiv.idiiiit    iiniiiili.      Silcnliuni 


ml  lihi'Tii  I'dli  sl:is'.    el  diici  s  cNciuiiIo        |i('rs:ciTilu)is,  (|illlili  U  mil  el  (■("•ri'i'iidl 


jdliiis  i|iiiun    inipi'i'; 

I  ■111-  jiiiMli.    ;.|     .•mil'    i 
IllilMlllilli'      |!ri!C'"lllt.' 
IM.lllill.  C.    T.  I        "  111'      11 

|iriiii'i|"'s    ciiiiniill::!!!. 


:i    pidiiii'ii.  si       jus  iv  I.  liii|:c  i:i;  ur. 


i-icri    .'igiiiil,    11 


(•(■|j:.,  j.lOUl    lU 


>I(ix  ii'X  vcl  prili- 
iil  iioliili- 


■!Hi|'i(\  in-o 


'I'acitii.-,  (Icr-      t.is,     |iroiii.    dc  mis     licUdi'iiiu,    pruiit 


';iiiii 


el. us       fai'iiiidci    <■-{.    jii;dhinlui',    iiucldrit.T.o 


miijei'ili 


idilidi   iii:ij.'is  (iii.iiii  jiilii'iidi  jKil'':-- 


(iiiiiics.  iliilnnii'ii  iitca  iniiiiiii(ii|U(iniiii       lal".     Si  d!s|ilicuil  Ki'iiti'iniii,  fi'ciiiilii 


(iciii  H  iilelii'iii  iM'liitriiiiii  (Vl  (ijiiid  |irii: 


iispcniaiitii;-;  sin  plie'dil,  fiiiiiioiiscni 


ci|ics|p('rti'iic'c'ii1i:'-.  Cp'iltiMl,  tii^i  (|iiid       ciiti'iut.      ll'mniatis-i'iiiiiii     iissciisii- 


fdrluitiiiii  ct  siiMiiiiii  iiicidi'ril.  ("it 


"tl  iiriiiis  liuidiii'i 


Jl.i.' 


dicUiis,  cum    iial  iiiclicatiir    luua  ant       Jl.)     "Klinunlui'   i'l  iisdciii 
iaililolur;    nam     aKciidis     i(>!iiis    li(ic       ct  lirincipcs,  (iiii  , jura  per  (uif; 


.■luspiciitissimiini  iidii 


crcdiMit.   Ni'c       ([lie     rcddunt.      C'litciii     Hiiii;iili» 


dieriiiii  niimcniin,  i.i  nos,  s(>d  iinctiuiu       pl(>ln 


ciimilcs    (Miiisiliiiiii     siiiiii 


I    >'l 


coinputaiit.     Sic  ciinslitiiiiiit,  sic  con-      aiicKuitas  iidswiit. 
<llcunl.      Nex    Uuooro   dlom    vidctiir. 


Iljid. 


ll) 


•I 


OKKIIN    III"    ('()N(;i;i'.SS. 


|i!a;'iic('.  licriMlitiiry,  while  tlic  t,';!!!!!'!-!!!!,'  ol'  all  Uk;  frecniuii  ol'  ihe 
iiiiiii'ii  liccaiiii'  imiKissilili'.  aUliiiii^^li  llic  I'orm  of  an  appi'iil  to  tlicm 
Tu' ili.'ir  rdiisriil  1(1  ilic  ((ii'diiii idii  III    llir  l^iiiL;'  was  ]ii'cs('rvcil.' 
'I'lir  naliiiiial  lci|i.''laimT  was  liio  W'ilriiaL'i'iiiuti'.  in  whii  li  sal  the 


ml    \a;- 


,1 


K'  I  Touii,  tlic  calilcii'nu'ii  o:'  cdiiiitv  li'aik'is.  and 


till'    Ijislmiis.    wliiini    tlicv    a|i]iiiiiilci 


It- 


exact    e(Piii]iiisilii)li    is 


lisiiii-e 


h.il 


III  alleliil.'" 


some  wiileis  In  lieve   tlial    all    iVeeineli   liail    tl 


'I'lie  peiiiile  ceilainly  iireserveii  eeitain  [iiiwers  ul'  lueal  self- 
i^iiveiiinient.  jMI  Ireenieii  still  liud  tlii'  liirlit  to  take  jiart  in  the 
sliiicniiitf  of  llie  eoiinty  wliere  lliey  lived  ;  and  as  late  as  tlic  rei<^n 
of  Allielstan  laws  were  siilmiitled  to  the  shiienintes  for  apinnval 


veiit    the    riijlit   ti 


lect  cei- 


lict'iiii'  they  took  ell'ect."     They  a 

tain  liie;il  (illieers.  ineliidinn'   rmir   eunipauiuiis  ul'   the  reeve    I'roni 

earli  townshii),  who  took  |iait  in  the  shirenmte,  and  re|iicsenteil  siieh 


the  peofile  as  diii  not  atti'iid  in  |iersiin. 


Ti 


the  same  ollieers 


that 


were  lounil  ov 


T 


lese  were  eviili 
t(i 


ntiv 


iiiitiis  in  aiieieiit  t  lerinaliv 


riie  Noiiiiaii    eonouest  extended    the    feudal    svsteni,   and   madii 


'I 
overnmeiit   moiv  dcspuiie   in    its   ehaiaeter. 


In  I-; 


iii'laiK 


hiiucver.  as  on  the  ( 'ontiiient,  thu  kinjfs  gained  strent^'th  aeainst 


lies   hy   the   grant   of   ehai'tered    ]ii'ivileges,   iiiiliiding  tl 


till 


lin'.ver  ol    eleetlli<» 


I'lties. 


le 


tl 


u'ir  own   majiist rates,  to  lioi'oinrhs  as  \vi 


■11  as 


And  the  assemblies  of  Ihe  tenants  in  chief  included  not 
iiiily  hishops.  l)tit  also  ahhols,  who  v.'cre,  in  tlieory  at  least,  elected 
liy  the  ecclesiastics  over  whom  they  pi'esided.  and  whom  they  ro]i- 


VcSfll 


ted 


when  votinif  aids 


to  tl 


le  crown. 


In  th 


'1' 


irtioiinicnt  of 


the 


taxes  levied,  and  in  the  selecli 


loll  ol  juries.  It  liccame  eiistom- 
:iry  111  allow  lacli  Knglish  shire  to  elect  four  knights  to  re]ircsent 
it.  King  .lohii.  who  had  a  donlitful  title  and  an  empty  treasury,  in 
l-t;>  followed  this  analogy  when  he  directed  the  sheiilTs  to  suni- 
tiiiin   four  discreet  men   from  each  coiiutv  to  his  coiiiicil   at  <  )x- 


"  Supra,  §  7,  note  3,  Ji.  3((. 

■■'  Slalihs,  Select  Clmrlcrs,  lip.  10,  11, 

2ss. 

''  I'lc'einiiii,  (ii'owtli  (ir  tlio  Eiij.tli'^li 
Coiistilnliiiii,  I'll,  it;  Niiniian  (Ajii- 
i|iii's(.  vol.  i,  p.  591.  Appeudix;  Taylor, 
Uriftin  and  Growth  of  tho  English 
Constitution,  p.  184. 


"  Slevons,  Sourci'S  of  tlii'  Coiistiln- 
tiiiii,  Isl  I'd.,  II.  (in.  i|uiitinK  Ki'iiitili", 
Siixons  in  England,  vol.  ii,  pp.  2Hii, 
•2.'17. 

1-  Slublis,  Si'loct  Charters,  pp.  i), 
•287. 

13  Supra,  note  7. 


IH) 


(■(>N(;i;i;ss    IN   (ilONiMiAl,, 


hllAI'.   IV. 


fold."        'I'lli 


toWllsllil 


s    was    ;i    ili'Mlciji 

ill    lill-    sllilClllllll'     li\     tl 


iiiciil    of   the    rojiiTSi'iililtioii    of    tlic 
I'   ivr\f  illlii   llis   four  fleeted  iiihl- 


|iiiiiioii.s.''     Oil  tlu' ( 'oiiiiiieiii,  ihc  lowiis   hail   formed  leai^iies  for 
iiiutini    prutci'lioli    ii;;;iili.>i     tlie    liiaeliHes    in    llieir    sieiiiitv,  at 


wliiel 


1  a!    first    the   rc|ireseiit.ili\  cs  of  eai'Ii   town  \\ .  ri'   the   iiia),'ls- 


tnites  whuiii  it   had    eleele(l    for   ''elieral    pill 


(  )ilt    (  f   ilii 


grew  the  ri'invsc'iitatioii  of  the  (owns  in  tiie  liiird  otate,-,  (  ,  S| 


laiii 


d 


■  ranee 


Simon   de   Monifoit   iierhaiis  took    the  iilea   from 


Spiiill.  wliell.  to  streli;,'lhell  himself  ill  his  contest  Willi  lli'lirv  III. 
iu^  siiiiiiiioiied  to  I'ailiaiiit  lit.  in  l\l''.'t,  two  leju'cscntiitives  froiii 
C'lic'li  city  and  horoiioh.  us  \m'11  as  the  l<iii!,dits  of  the  shire.  In 
thirtx'  iiioic  years,  under  lalwaid  I,  ihe  rioht  of  Imth  towns  and 
sliii'i's  to  representation  was  fully  eslahlished.'' 

At  the  institution  of  popnlai' repiesentation  in  Parliament  tlieii' 
^^el■e  tliiei.'  entiles  as  finally  est  ilili>hed  in  i'"iaiiee  and  Spain  :  hut 
the  eleiey.  fortunately  for  civil  lili.rly.  had  the  folly  to  cast  asidi' 
tlii'lr  opportunity,  iiiid  chose  at  liisl  to  oraiit  their  aids  in  eoiivo- 


cation,  a  p!i\ile,L;e  Vvhieh  tliey  afterwards  reliiiiiuisheil  ;  and  the; 
liccaiiie  siilijeet  to  i'ailiameiii  w  ithoiil  itiiy  different  represeiilatioi 
than  the  other  commoners,  t  \ee[) 
1  louse  of    Lords. ''^ 


I  Ihroiie-li  their  hisl 


til. 


Ill   the   northt'in   countries  of  continental  1', 
III  the  pt'asalits  wcic  scpara 


lops   111   tiK 


the  iiiiririiei's 


tcly  represented  ;  and  in  l-'inlaiid  tin 
four  e--tiitcs  still  assi'inhle.      \\'hether  the   reprc-seiitativcs  of  tin 


tl 


il'ce  est. lie;  cvei' 


coiidiieied  their  dcliheritioiis  in  the  same 


l)IV  l.i 


iM..daiid  is  a  matter  as  to  \vlii(di  historians  disiivrec.'''    Cir- 


'■•  A  ('i)|iy  of  tlie  wril   i-  prlntrii  in 
Stiitiiis'  Select  Cliarl.-rs,  'iHl. 


.•i.;,'re('niriU  Iu'lweon  .\n'liliN)i(i|i  Sliil- 
ind    Loril    CliiiMiejldi-   Cliii'i'iiiln!) 


'■•  Iliid..  ]!.  2S7. 

'"'  Iliiil..  PI.,  -tan  iSpepic,.]-,  I'.iliii,  a!       tl„ 


(In 

in    llii'ii,    iiiidcr   C'litirl.'s   I,  just  iiflor 


Iimliliillons,   §  4r»H.     In  ricren-'i 
12")0,  tlie  I'iti/.uus  (livlili'il  into  !.'r. 


ri'.,toralion.  BLslioji  (iilif-en  pro- 
'.  in  nuunciMl  it  to  lio  "  the  Kfeatcst  nlK'i'ii- 
uiiH,       timi  of  tlM>   Constitution   over   nimli' 


of  wliiih  PiK.'li  clios"  11  captain,  uikI  tlie       witlioiit 


express   law."     (Spcaki'r 


•aplainw    In    conncil    ruled    the  i-ity      Onflow's  note  to  Hiirncrs  IIMory  "!' 


tibiil..  S  1" 


■  Stul.hs,  Scli'<-I  Cliai-toi  s,  jip.  10    14. 

'Siiilil.>;,  Select  Clnirtcrs,  jip.  :is,  r.i  i',._vuiic,  i.s!  Kc^iisicr,  p.  2:: 


^ly  own  Tinii's,  Oxl'oid  cd.  of  isr.;!,  vol. 
iv,  pp.  n-iO'.'-J!.^ 


31).     Tlie  rit;tit  ot   rarliauient  to  tax 


nics  this.    Coke,  4  InstitnlcH.  p.  1. 


the  clergy  and  (lie  snrrcudcr  of  ihc      tlial    tlicy  did.     (Tayior,  Or 


jurisdiction  of  (he  <'onvoeations  o\ 


the  Buhjccl  was  ariaugcd  in  a  vcilial      p.  47s. 


•r      (Innvlli  of  the  English  ajii.stitnti' 


§^'■1 


OIIIIIIN    III'    CnNclll-.ss. 


an 


tiiiilv  '.hv  kiiij,'lils  (if  till'  .sliiits  ami  tiir  ii'|iicsiiitativ('s  ol'  lln' 
lHiniiii;li-i  siiiiii  wiilidii'w  111  a  st'|iarali'  imily  rallcil  ilic  ( '(niiiiuiiis, 
ttliicli.  alter  a  serifs  of  lialllts,  fdiit^lil  iisiiallv  in  tlii!  (tliaiiilici's  (if 
l(f,Mslatiiin  and  tlic  ('(iillls  of  jiislicc.  lnil  Sdincliliics  in  llic  licld.  nli- 
UiUcd  llic  cxcliisiM'  ri^^lil  (if  taxatiiin.  anil  iiy  i:s  use  lias  I'cdiu.'cil 
tin- [Miwcr  (if  till'  Cidwii  t(i  a  cciciiiiinv .  and  llic  I  liiiisi."  (if  liOids 
t<i  a  tcMiiidiai y  (ili>triicti(iii. 

'I'lic  carh' ('(ildiiics  ill  Ndilli  Aniciici  ucic  cdiiidiaiKin-i  (I'catcd 
li\  llic  kiiijj,  siiliject  Id  liis  visitiirial  |id\vcr.  cxcr.'iscd  tludindi  the 
i'livy  (  (iiinril  and  tiuunj^li  tlu  imwcr  (if  llic  coiiris  in  dissdlvu  them 
fur  a  lii'cach  iif  the  cdndilidiis  nf  their  chartcis.-"  'I'Ijc  lliinccn  arc 
iliviili'd  li\  ihc' histniian-*  intd  thi'cc  clasM'-i :  cliaitcr,  criwn.  and  pfd- 
jniclaiy  cdhinies  ; -'  Inil  in  sniistaiice,  al  the  diulircak  df  the  Rov- 
ipliitiiin.  their  fdini  (if  L^'iivernnicnl  was  sniistantiallv  tlie  sani,'.  At 
•,li>' licid  was  a  tfuverndr  a]ij.iii:iti'il  hy  the  Ulti'j^  nr  iu'dpi  ietoi's, 
(■\cc|ii  in  ('(inncetieiu  and  IMhkU'  Island,  wlnie  he  was  ehuseii  hv 
'.he  jieii[)!e.  Next  eanie  a  cdiiiieil  a|iiidinie(l  hy  the  kini^'  (ir  (jjov- 
♦MMdi'.  (If  in  Ccinnceticiit  and  lihdde  Ishind,  as  I'dinicrly  in  ,Massa- 
cliusctis.  a  hddy  (if  assistants  chi  sen  hy  |id]inlar  eleelidii.  In  the 
t'lnly  settlenu'iits  there  was  no  aiulmrity  hy  law  hir  pdjmlai' 
ivliieseiitalive  assenihlies.  Sindi  assendilies  -were  not  I'diinallv 
ilistiuitcd.  hnt  L^'l'ew  n]i  hy  iheniselves,  h('cansc  ii  was  in  llu3  na- 
tinv  iif  iMioJishnien  tn  asseinhle." --  Tlit!  Ilrsl  met  at  liie  call  iif 
till- ■^nvcnidi- (if  N'i.Li'inia.  in  liil'.i;  and  two  yeaiN  later  was  san^- 
tidiir'd  I'v  an  didinanee  nf  the  ( (umeil  df  the  eomjiany  in  I'Jnj;- 
luid.-"''  .Miissaeliusetls  fdllnwed  this  exani|i!e  in  I'i:!-!  withmii 
iiiiy  !ee-al  anthiirity.-' and  in  the  sam(^  .y-''ii'  ii  rejiresentative  assem- 
bly incl  in  Maiyland  ;  where,  nnder  the  cliailcrs.  oii finally  all  the 
fivrnieii  hid  the  lii^lit  tn  lake  )iait  in  le^yisluidn.-''  These  ex- 
aiii|'l(  s  were  f(.ll('we(|    in  the  other  cdldnies.-"     The   eai'ly  assem- 


■-''^Tli(>    Cirirlcr    of    :\[.-!ssiiclnisollv 


-'-  Scclcv,    i;x|iaii~inn    cif    I'.iiu'laiid, 


was  ci.ni-i'!!!  ( 


II. 


Ml  ;;    j.i 


I  i'l   l(i>;l.  mi. I.  r  ('liar!.>. 
:iiiH  ill    till'  (Viiin    dl' 


llellM 


Slut.,   in-   sn 


Klii;,''s  Bench,  lii«aii  li.v  wire  faciax.       (lie  ('(la.-titiilioii  (5111  oil.),  §  U). 


(llcv.rll's    S-,i;!c   Tri 
1071.1 


Mil.    vii:.    |>. 


TV  en    llic    Ciii^litiilioii    ,  ."til 


cil.),  S  (111. 


]!l:lclistcll(>'s    ('(llllMKMlti'll'IcS, 


vol. 


'Stevens.  Sources  of   tlio   Constf- 


i,  |i.   IDS;  S'.ory  on  tlie   t'oiislitution       tutioii.  pii.  17-ls. 


(5tli  (1(1.),  §  151). 


*'  Ibid.,  ii[i.   18-25. 


h^TVI 


;;iii 


CONCUr.SS    IN    (iENERAL. 


[CIIAI'.  IV. 


l)iivS  sat  together  with  the  assistants  or  councils;^'  })iit  soon 
t!nv  si'iuuiited.  The  subsecjiient  liistory  of  the  relations  between 
I'^iiLrland  and  the  Noi'th  Anieriean  eohjuies  shows  a  constant  strus;- 
f^le,  on  llie  jiart  of  tiie  popular  assenihliea,  to  assert  the  powers  and 
privih'^fes  of  the  Ifonse  of  ("omnions.  and  to  reduce  that  of  tlie 
governor  and  council  over  legislation  to  what  was  allowed  in  Kn<,'- 
luud  to  tiie  king  and  House  of  Lords.  IJy  the  outbreak  oC  tlie 
IJevolution.  the  peoi)le  believed  in  the  legality  and  justice  ol  tiiese 
i-hiinis  ;  and  they  were  exercised  against  the  protest  of  the  ollicci's 
of  (he  crown,  but  with  only  "poradic,  opposition. ^'^ 

Most  of  tiie  State  conslilutions  organized  during  the  Kevdliitidn 
coutained  two  legislative  Jiouses,  of  which  the  lower,  in  S'inie,  liml 
liie  exclusive  power  of  origin.. 'iiig  money  bills,  and  lli''  litter,  nsn- 
I'.Uy  called  u  siuat  ■,  was  inorc  aristocratic  in  its  eoinpusitioii.  Ihii 
ilirec  of  the  lu-st  State  constitutions, — those  of  I'cinisylvaiiia, 
Dehiware  and  (ie(n'gia,  —  and  at  the  close  of  the  Kcvolution  Inii 
two,  —  (ieorgia  and  Pennsylvania,  —  had  a  single  cbanilier,  al- 
though till!  legislature  of  X'ermont.  wliieh  was  then  svcking  .»1- 
niissioii,  was  siinilaiiy  composed.  Since  the  adoptii'ii  nl'  the 
l"\>deral  Constitution  thesis  also  have  adopted  tlie  bieaiiie::i! 
form.-'-' 

vMinost  every  ste[)  in  l!ic  growth  of  the  Englisii  ("onstitutio!i.— 
even  the  origin  of  cliancm-y  juivs:iiction  from  tiie  extr.ionHiiaiv 
jiowevs  of  t!ic  executive  and  his  council. —- may  be  found  rrju'e- 
(luceil  in  the  iiist  ;ry  of  one  of  tlie  .\-!ierie;iii  colonies. 

5J  4S.    I'rocoodiiijiS  in  flic  Coiivcntioii  as  to  tUf  CoiiiposMioii  ol' 

<.'ori!.;r<'s.s. 

This  bi'ings  us  to  a  coiisidciation  of  tlie  lirst  of  the  three  greiit 
coniproiiiises  of  tin;  Con-titution.  'I'iie  miin  obstacle  to  a  uioie 
jierfect  union  iirose  from  the  conlbeiing  inter<'sts  of  two  groups  ef 
Stales — the  birirer  and  the  smaller  —  and  of  two  otlicr  cross-se.- 


-"This  was  the  ease  in  M;issicliii-  li'iai'i  iKIioile  Ivl-.nd  Cnloiiy  L.'iws,  I'^l.  of 

f^i>;t.s  \n>Ml  Kill;   inM:ii-yliMi<l  till  1(;I7  17tl  p. 'Jt;  Slury  on  tin' Ciinslil.uii 

iir  l(i.')()  (Tiiyldr,  ()i-ij,'i!i  und  (iie-.vlli  of  r);li  (>il.,  §  '.»'.!;. 

lli((  En.u'lisli  (ViMslltnlion,  ji.  24:   Mo-  -"  rii;iliiii'i-.i,    Iiilnnlactlun    In    tli'' 

ran,  llisniiiiil  Dcvoloiinicnt  of  tlic  Hi-  Itovolt  ot  the  .Vuicriciiii  Colonies.  ;i'M- 

'MMienil    Kystcrn   in    Ann'ricn,   Jolins  Him. 

Mopiiins  Hinilii'.H,  vol.  xii,  |i|). '211, '21<!,  ""  OcorKJii   in    17S'.);    Porinsylv.iiiia 

a-l'.l,   i.iO  !  ;  iiud  in   Uhodo  Islaml  until  in  171K(;   Vermon'  not  till  ISItO. 


4S.] 


I'UOOEKOINO.S    IN    Till'.    CON VKNTloN. 


:513 


tidiis  into  which  they  were  ulso  divided, —  the  free  iind  tlie  skive 
Siitis.  The  lirat  conflict  was  settled  then,  and  it  is  to  be  imped 
I'nrcvcr.  'J'iie  latter  was  smothered  for  a  while;  hut  the  enihers 
sMKiuidercd  for  nearly  three-(;u:irteis  of  ii  century,  until  tliey  broke 
iiifd  a  tlanie  which  was  not  (juenchcd  till  it  had  destroyed  the 
kiiiiiliiitj. 

'I'lie  larfTci'  States  wished  the   political   ji^ 

llllllllll'l'S 


to   he  based  o 


The  sinallrr  iii-istcd  that  they  should  have  an  equal 
riu'lit  of  surt'raiifc,  as  und.T  the  ( 'onfcdci-alion.'  The  North  desired 
iiuit  the  basis  of  ri'pi'cs;'ntation,  if  related  to  numbers,  should  be 
cnnliiied  to  free  men.  'J'he  South  demanded  that  property  in 
.slaves  shoidd  also  be  re[)resented.     The  Continental  Con!,'ress  and 


the  Concfress  uirler  the  ('unr('(! 


rier  the  ( 'unr('(!eraliii!i  each  consisted  of  a  single 
haniher  in  which  the  delegates  voted  by  States.^  Hefore  the 
iln'iiiin,'  of  the  Conveiitioii  some  of  the  delcc;ates  from  Pennsyl- 


vania w 


ere  dispdsed  to  abolish  tliis  i;iji;stici'  a 


t   Ih 


out-ict  bv  in- 


.■iislin^f  that  votes  in  thai  body  should  be  proi)oriioned  to  ])iipula- 

X'iryiiiia    clicchi'd    thrir    lashncss. 
le  i)riiccedin!js   tn  an  caiis-  and  triiit- 


tiiiii 
wjiich 


lint   the   moderation 


lid  1 


lave  iirou'T 


ht  th. 


less  termiiiatiou.''  The  earliest  division  arose  upon  the  (picslion 
a.s  to  the  character  of  the  new  •roveinmcnt.''  Tlu're  was  littlt; 
opposition  to  the  determination  that  if  it  were  to  !);■  national  the 
leirislature  should  consist  of  two  house.-;.     TJir  onlv  hostile   \dle 


thai 


I' 


Iviiiiia,  whicli  w 


thus   cast  as  a  compliment 


ti)  1-' 


'pull  the  day  al't-'i-  tlie  introduction  by  itaudnlpb  n\  the  '.■csol;i- 


llllll    pIDpOSCI 

the  lirst  \\;i.'! 


[  iiy  ll 
]  lost  pi 


le  (leleij'atiou  ol 


a.  the  consideratidii  of 


d.  and  instead  thereof  the   ( 


onventioii,  m 


the  committee   of   tlic  whole,  adopti'd.  liy  a    vote  of  six  States   to 
one.  New  Voile  b:'iiiL;'  divided,  thi'  I'iilidwiiii;'  ri  solution:    - 

"That  a  X'llitiiinl  uovi'i-iiaieiit  oiiirhl  to  lie  eslalilislied,  eonsistiui;  of 


:i  ■iKlnriiic  !e;. 


^lMtiV( 


■xeeiitive,  and  jadi 


111  ll 


le  course  (.1 


debate. 


Mr.  (; 


iiiveniei'.r  .Morr 


IS  explamei 


1  llie  (iistinetion  hetwecii  a  Mend 


i)  IH.   I  Siipnt,  §  4,  over  nolc  17;  §  '.), 


iKiti'  ;t. 


.\rlliles  (if  ConftMlcrallo 
Suiira.  S  1),  nolo  ',). 


*  Siipni,  S  17. 

'  Miiilison  PiiiHTB,  KlUot's  Uobatcs, 
•2(1  (>il.,  vol.  V,  ]K  laS;  infra,  §75. 


S14 


CONCllKSS    IN    <ii:N'Ki:AIi. 


[cil.u'.  IV. 


!i;ul  !i  iialioiinl  mijin'mi'  ^ovornmciit  ;   tlu!  fonnor  beinp:  a  iiicrc  (•(iiiipae', 
icstiiii;  on  tlic  good  faitli  of  tlie  jiarties." 

Wlirii  ivt'i'iTtMl  to  the  CoiiiuiitttM'  of  Detiiil,  tlio  lirst  ri'sciluliim 
was :  — 

"  Tliat  the  government  of  the  United  States  ought  to  coiisi~t  oi  a 
supreme  legisliiture.  jiidiciiiry  and  executive."" 

Tlic  .small  States,  liowi'ver,  refused  to  concede  tli.'.t  tlieii'  defeat 
on  till'  (|ucsti<)n  of  the  clmracter  of  tlie  nc'  •  mo\  ;i  iieiit  should 
<'arry  w  itli  it  the  control  of  the  national  legislsi  no  h\  ?!.«  UKijiirity. 
Thev  were  aided  hy  the  support  of  some  (leletraies  fnuii  the  iari^'er 
Ntates.  who  feared  lest  the  (!onsoli(lation  should  eventually  cause  a 
destruction  of  the  State  {.^overunients  and  a  complete  centralization 
that  would  result  in  the  destrnction  of  liberty."  'I'hey  rallied  in 
sui)j)oit  of  the  Connecticut  coniproj'.ise.  first  proposed  hy  Moijev 
Sherman,  whii'h  allowed  the  lower  lions*;  to  he  lilled  hy  jiopular 
election  and  its  menihership  proportioned  to  population  ;  hut  [ire- 
.served  the  I'qnality  of  the  States  in  the  upjier  house,  which  was 
to  ]io  chosen  hy  their  legislatures,'*  A  debate  ensued  of  the  ut- 
most bitteiness,  in  which  the  small  States  threatened  to  dissolve 
the  Union  and  seek  the  support  of  some  i'oroii^;n  power,  while  the 
largo  replied  that  disruption  would  be  prevented  by  an  appeal 
to  arms."  The  convention  came  to  a  deadlock  njuin  the  a.w"^- 
tion.  and  I'rauklin  was  driven  to  the  expedient  of  supgestif 
aid  of  prayer  to  promote  eoneiliation.'"  At  last  the  siil),.  ■  ■ 
referred  to  a  committee  of  one  niemher  from  each  State.  ■, 
omnieiuled  the  measure  liiiidly  adopted,"  except  that  tlie\-  n. 
jinsed  to  give  the  lowei'  house  elusive  power  to  inMuginMtr 
ap[)ropriation  bills  and  bills  tixing  sahiries,  without  power  in  tin 
Senate  to  alter  or  amend  them.'-     The  concession  in  the  comniit- 


«  Madison  I'lipcTs,  Ellicirs  Di'lialcs, 
2il  o(l..  vol.  \ ,  [ip.  lllll,  :)7.'). 

■  Ilil(!.,  p.  '2111,  iKilf. 

"  Ihiil.,  pi>.  lltH  and  178.  Sec.  liow- 
ever,  tlio  roniiirUs  iif  Uiekinsoii,  iliid., 
pp.  Its  t-tl);  (Mid  of  Sp'il','!it.  il.ld..  p. 
l;37.  Shi'l'iiiiin  had  siiK^i'.'^ti'd  iiii  aniil- 
ogoiiH  HclitTMi' hi  till' f'oni  iiii'niiil  Ccm- 
Uross,  Aut,'.  1,  177(i.  Jolui  Ailiiiiiti' 
WorkH,  vol.  il,  p.  4'.)'J. 


"  Si'i'  till'  .Mjn'oi'lics  of  (iiiiinhit,'  lii'i^- 
ford  of  Ni'W  Jersoy  i  ildil.,  p.  2iW  ,o 
Gouverni'iir  SIorHs  (ihlil.,  p.  '27111,1111' 
of  Gorhani  of  Massai'huHoM.s  (iliiil..  p. 

•2r,~». 

"  Ills  sie,'U'i'f''loil  W.I  ;  !.■.  Mlnjili''!. 
llild.,  pp.  '2,"i;i -'2,-15. 

11  II. id.,  p.  '27:i. 

'-  Iliiil.,  p,  27.1,  Si'o  ii.JYit.  i!  (il, 
ovi'r  unl.o  1"'!. 


i-is.^ 


rilOCKKDINCS    IN    TlIK    CONVENTION. 


:)].-> 


Wi'  WM  ()l)taiiR'(l  by  tiiu  iiilluciic(!  of  Fiankliii,"  wlio  iv])n  s-iitcd 
iViiiisylvania,  the  second  State  in  jiopiilation.  It  was  caiiiid 
iisriiiiist  thu  vote  of  I'eniisvlvaiiia  in  the  Convention  liy  live  States 
U,  four,  Massacliusctts  l)einfr  divided  ;  N\.\v  York,  Ne^y  Ilanipsliin! 
iiiid  liliode  Island,  wlio  would  have  voted  with  the  majority,  Ijeinfr 
;!l.sent:  and  North  Carolina,  winch  had  formerly  acted  with  the 
Iir^rer  States,  with  one  dissentient  delcfrate,  giving  the  easting 
vete.i^  A  motion  for  a  reconsideration,  made  by  (Jouverneiir 
Menis  in  tlie  Convontion  immediately  after  this  conference,  was 
net  even  seconded.'^  Thus  the  structure  of  (:\)ngress  was  liiially 
<letermined  by  the  votes  of  less  than  a  majoiity  of  the  States 
invsent  in  the  Convention,  and  of  less  than  one-thinl  of  the  rep- 
ivseiited  poimlanon."' 


'•  Iliid.,  p.  271,  nolo. 
"  (\iiinootic\it,    New  Jersey,  Dela- 
w;ire,  Jtiiryland,  Xoiih  Ciiroliiia  (Mr. 


'I«iii;lit,  no),   ■■ly,   a. 


Ponnsvh 


t^rry,     Mr.    StronR,   ay;    Mr.    King, 
Mr.  Gorliam,  no  (ibid.,  p.  31(1). 
»■■  Iliiil.,  p.  319. 


\"ii>'inia,     Soutli 

1111,  J.    Massaoliusotts,   divided ;   Mr 


'  Towle,  llistor 


•y  iiiid  Analysis  of 


Carolina,    (l.'orRia,       the  Constitution,  3d  cd.,  p.  (ia 


CHAPTER  V. 

TERM  OF  MEMBERS  OF  TIIF;  HOUSE  OF  REPRESENTATIVES. 


§  40.    Term  of  Moiiibcrs  of  tin-  House  of  K«'i»r«seiitativcs. 

The  Coiistitutiou  provides  thai  "  Tlif  House  of  lii'iireseiitalives 
sliall  bo  composed  of  iiu'inhiTS  cliosoii  uvuiy  sei-oiid  yciir."  '  'J'lic 
history  of  (lie  iMit^lisli  I'arlianu'ut  and  of  lli;^  cxt'-nsioii  of  ils  (crni 
from  two  to  S(!vrii  years  by  the  Sepleiiiiial  .\el  uikU'I'  (ieori,''!'  1. 
in  order  to  defeat  the  will  of  tlii>  peopK'.-  liad  tuiLc'.it  tlie  framris 
of  the  Coiistiluti  )ii  thu  ii!ij)'):1a;ire  of  liiiiitiwc,''  the  (hiratio'i  ot'  tlii' 

eeessily  of  the  il.ilj>l:iic;ltioll 


term  of  meinl 


)ors  o 


f  ( 


oiiirress. 


TI 


that 


a  statute  was   void  wliieh  extendc^l  a  h'tjashitive  ter 


III  hi'vniKi 


the  limits  of  the   ( 'inistitntioii,  seeiiied  to  (lie   men  <if  tlial  tiiiR' 
tlie  strongest  aryaiiiient  i:i   sii|>p:)rt  of  liie  power  e,f  the  eiaiiis  to 


Uichiro  an  aet  of  tln^  le'dsbiturk'  iiiu-oiutitiitioiiab' 


T\ 


leir  eaiitioii  was  [ir 


ived  wise  bv  the  aetion  of  tiie  V 


reiirli 


\,i- 


tioiial  Con  vent 
the  1 


ion  in  eontiniiinjf  the  greater  ]iart  of  tiieiiiselves  in 


eL;'isialive  ass  'MUUv  whi 


•h   tl 


lev  est  il)hs 


hed  in  their 


eiins'iitii- 


lion  of  IT!'.").      Ibi  1  no  such  sifen'iiard  lieen   inserted  in  tiie  ('(in- 
stitution (if   tlie  I'nitcil   St  it>'S.  there  can  ln'  litth)  douiit   Imt  tiiat 


at  least  tl 


[■'ederal  Con'ifrt 


at  tl 


10  close  (1 


f  til 


ministration  of 


Adams,  and  ]ierhaps  liter  ones  would  have  eoiitinneil  themselves 
in  oili(('.  undei'  tlie  eonvietion  tiiat  tliis  was  indispensable  le  the 
imblie  welfare.     Tiiu  terms  of  the  coh)iiial  assemblies  w( 


IX('( 


by  hiw.  and  varied  from  six  inontlis  to  seven  years.'     W'lieii  tiie 
lii-st  Stale  (iiustitutioiis  were  aihipted,  Uliode  Island  and  Coiiiiec- 


§1'.).  '  ('oiistiliitidii,  Arliric  I,  Sec- 
tion 2. 

-  A.  [).  1717,  Iliillani'sf'oiislilutlonnl 
IHstery,   ■Widilletou's  Anioricaii   Kd., 


'  Di^n  (1.  liiiyard  iind  wife  i'.  Siuglo- 
ton,  1  llartiii  .  \.  C.i,  12. 
■<  The  lYMlei-iillst,  No.  li. 


vol.  ill,  II.  22H. 


31G 


$!•'•] 


ti:i:m  ok  .mk.mukks  of  tiik  I!o;sk. 


;n7 


liiui  coiitiiiucil  und-'i'  llifir  ()1<1  clmrtois  iiiid  foniifr  iniu^tice  :ii' 
.Miiii-ininu;il  ck'i'liDiis.  TIiu  other  Siiitt's,  cxccj)!  Soiitli  ('iiMilli.i, 
wlii'n.'  tlu'v  v.i'w  l)ii'iiiiiiil,  1im<1  iiiiiiiial  clc'tioiis.''  !)>'li';^-,iti'^  to 
till'  CoiigK.'SS  under  tlio  Conrcdi'mtimi  were  aiiiiiiidly  appoiiitml 
ii.s  the  Stale  lel;•i^^latl^■L'  directed,  sulije^-t  to  retail  al  any  iiiiic, 
iiii'l  iiiel'iLjilile  I'"!'  nioi'e  lliau  lliivc  yi'ai'.-;  (lut  ol'  six.'' 

'i'lu'  ;  rni  (if  two  years  was  elio.sini  hy  the  I'edeial  ( '((nveuvinii 
as  ;i  c'laiiiMiniise  lietweeii  the  iidvdeates  of  ainiiial  eleetioiis  a. id 
thus,'  \\lio  ^\•islled  tiie  old  ICliijlisJi  practice  of  a  triennial  tiM'n!.'' 
TIlis  feature  of  tlie  Constitution  Wius  perliaps  tliat  most  attaei<ed 
wlicii  it  was  liefore  tiie  people  for  niti'ieation.  Tlie  Fe  leiali^i 
fuun!  it  necessary  to  devote  ;iii  entire  niiniber  to  tlie  consideration 
(if  tlie  piiraso  of  tlie  day,  '-lint  wliei'i'  ainnial  eli'ctions  end.  ly- 
laaay  liej^iu'i."  **  Tlie  d  in'j;'ers  feared  from  a  loiitj  t/rni  wei'e 
iijiHuanee  of  the  Avav.ts  of  the  eonstitiu'uts,  and  atienipts  at  a.  pai'- 
[ictiiition  of  power.  'Die  adviintajres  anticipated  weic  the  \vi  - 
(loai  to  he  deriveil  from  e-Xjierleuee,  and  the  opportunity  to  uiat'ire 
UKsisuri's  wliieli  uiiy'ht  iv(|uirc  ii  considerahle  period  of  time  fi>r 
ilicir  perfection.  In  ]:i-iietiee,  the  term  has  lieen  foniid  to  he  suh- 
jcet  til  mure  ciitiei.  ni  for  its  hri'vity  than  it-*  Ic  uj;'tl!  :  and  llu'  pii-.- 


*Tlii'  I-'.Hlcinli^l,  Nil.  lii. 

«  Artii'Ics  of  Coiit'cihM-aLkiii,  V. 

'Till'  lli'bt  voto  was  in  fiivcn-  (if 
a  tijirii,i:il  tiMiii.  N'e-.v  Yorli.  Ni'W 
•JtTsc  \ ,  r.Miiis.vlvaiiiH,  Deliiwiirc,  Miiry- 
l:ai'i.  Viiginhi, (111(1  ("rcorf-'iii,  7;  Massii- 

rliii-^rlls  I  Mr.  Kiiin,  ny,  Mr.  fioiiiiiiii  (Minsidfn'cd  aiiiiual 
Wiivi'iiiin,;  ('(inii(>cti('iil,  Xei'lli  Oiro- 
linii,  1111(1  Soiilli  (Viroliiifi,  im,  1.  "Wf. 
Mnilisiiii  scM'iMidi'il  tlu!  iMoliiiii  for 
thriM'  y(!iii'K.  "  Iiisliiliilily  is  diu'  'f 
till'  f'l.'al  vices  (if  (iiir  Ei'iMililic  lo  1  o 
ri'iui'.li.'il.  Tlii'('(!  years  will  lie  iici-es- 
sary  iii  ii  (»i>veniriliMit  so  exlensive, 
fur  iiieiiiliei's  to  form  raiy  knu'vledjiP 
(if  III"  Mirious  inlerestsof  tlu'  Klalcs 
to  whirh  lliey  do  not  Im'Iomil;.  ;iiid  of 
wliidi  ihey  can  know  Imt  liltle  from 
llic  .'•ituatlon  1111(1  iiffiiirs  of  tlieir  own. 
One  year  will  lieiilmo'd  i-oiisuiiied  in 
pri'piiriiif;  for,  mid  tni\ellinn  lo  and 
fniiM,  till' sent  of  iiiilionnl  oniee."  Mr. 
Gi'iry;  "The  iieo[il(>  of  New  Kii|;lan(l 


will  nevi  r  fjive  up  Ue>  luiiiii  of  .•iiiiii;..! 
eleetioiis.  They  know  of  llie  tr.ia.--i- 
tion  made  in  Kai/laiid  from  trU'iiir.d 
to  se|il(iiiilal  eicelions,  :iim!  v.ill  con- 
sider such  an  innovation  here  us  lie 
)ireladi>  to  a  like  iisii;-|iiil  Ion.  lie 
Icclioiis  as  i!i(' 
only  defense  of  the  iieoj.h'  au'aii'st 
tyi-;inny.  He  was  as  iiinch  tciiiins  a 
Irienniiil  house  as  ii^faiast  nil  liia'r.a- 
tary  executive."  (Maiiison  I'ap  s, 
KUiofs  Dchates,  2d  ed..  pp.  1S;M;  ;,  i 
Nine  days  inter  tlio  lerni  of  tln'M 
years  was  strickiMi  out.  Jtassaciiu- 
setts,  roiinecticiit,  ]'("nnsylvaiiia,  \'.i-- 
Kiiiia,  Xorlli  Caiiil'iia.  Sinitli  Cti-iiin  i, 
fieort;ia,  ay,  7 ;  Now  York,  Pela-.-.:ee, 
Maryland,  no,  II;  New  Jersey,  ili- 
vided.  The  term  of  two  years  was 
tlieii  Inserted,  neni.  eon.  (Ibid.,  pp. 
2'2t  2'J(i. 
»  No.  lill. 


ais 


Ti;i;M  OF  MKMr.i:i;s  ok  tim;  iinrsi:. 


[('IIAI'. 


cut  tciilciirj'  of  St;iU'  uonstitiitioiis  is  to  li'iiLftlieii  tlio  Icrnis  uf 
liolli  Ifj^'isliitivu  liousfs.  Ill  a  iiiiijoiitv  of  tliu  State  Icrrisliunivs, 
a-;.seiiiblvmeu  are  I'lectud  for  two  years,  and  State  seiialors  Uiv 
four.  Ju  Louisiana,  the  terms  of  members  of  botli  lenses  aiu  four 
years.'''  It  is  the  practice  in  many  congressional  districts,  \v!n'n; 
o;ie  party  is  in  a  large  majority,  to  give  to  each  satisfactory  mciii- 
b>'r  an  election  to  a  second  term,  and  then  to  elect  anotiier  fiom 
a  different  jiart  of  the  constituency.  Tlius  rotation  in  dlTnc  is 
the  rnlc. 


'J  In  H.'lj^iiiiii,  ro]ir('.sontHtives  nri' 
•'liM'lcd  for  four  years,  onc-liiilf  of  tlio 
liiniso  bciiiK  I'oiiewi'il  cviTV  two  years, 
a:i<l  sciiittiirs  for  cifilit  yoiirs,  oiie-liiilt 
:lu'  seuiito  li<'iu.i;  I'ciu'wod  ovory  four 
yciii's;  .Tiid  both  liousos  bciugoutiroly 
ri'iicwcil  mioii  (I  ilissoliitioii  (Articles 
51,55'.  Ill  Fnuiee,  (ioputii's  for  four 
mid  seiiiitt)i'.s  fur  uiue  yeai'.s,  the  l:ittor 
body  beiuK  renewed  by  lliirds;  and 
tlio  terms  of  both  nre  ileiennined  by 
a  dissoliilioii  :  Law  of  Nov.  ;!0,  1S75, 
Aniolo  15 ;  Linv  of  Doe.  ",l,  18H4,  Arti- 
cle 7).  llembera  of  tlie  (ioinian  Diet, 
are  eleclcd  for  tlii'oe  yeiirs,  unless 
sooner  dissolved  (  Coiisti'iuiioii  of  Oer- 
iiiany,  Arlielo  21).  In  Prussia,  mem- 
bers of  tlu)  Seeoiid  Ciinml}er  I'or  live 
years,  unless  sooncM' dissolved  ;  mem- 
bi'i's  of  llie  First  Cliiiniber  are  a|i- 
poinled  by  the  crown  for  lifo,  or  with 
the  power  of  lieredilary  tninsniission 
(Artieios  (!5,  09,  7;t).  In  Switzerland, 
members  (if  tlio  National  Council  are 
olocted  for  throe  years  (.Article  711). 
In  llic  Heiiutiiic  of  (\)lonibia,  ropre- 
sontativos  are  eliosen  for  four  years 
and  senators  for  si.\,  the  senate  being 


renewed  by  thirds  (.Vrticles  '.C,  101  , 
In  Kcuador,  r<^present;itivi's  for  ive 
years  and  soniitors  for  four,  oni'-liiili' 
of  tlie  senate  lieinf.;  renewed  every  two 
yi'ars  ( Articles  ."iS,  5!lj.  In  Honiinr,':", 
doi>uti<'S  for  four  years,  one  half  every 
.second  year  {.•Vrlicle  ;i'.l  .  In  ilo.viio. 
deiuilies  for  'lWo  years  and  seiiatei's 
for  four  years,  ono-hidf  of  the  .■-emdi' 
ovory  seooml  year  (Artieios  B'i,  5H).  In 
Vonozuola,  doimliea  and  senators  fur 
fouryoars  (  Article 21).  lullie  Arncu- 
tino  Kepublic,  deimtios  for  four  ye.-irs 
one-liaif  every  sei'ond  year,  seimters 
for  nine  yi'ars,  one-third  every  tliinl 
year  (.Articles  .12  and  IH^  In  liray.il, 
deputies  for  three  years  witli  a  (,'u.ir- 
anly  of  minority  n-pro.'-onlation,  semi- 
tors  as  in  tlie  Ardent ino  (  Articles  17, 
lit'.  In  .lapan,  menitiership  in  lie' 
House  of  reels  is  hereditary  or  fm' 
lifo  on  appoiiiimeiil  liy  tlie  Miliiido. 
The  diet  seems  to  be  chosen  every 
year  and  also  iipo.i  a  di.'-solutio..|^Ari:- 
chs  ;t4,  Ii5).  The  Hawaiian  <'onstir.;- 
tion  is  similar  to  lliat  of  the  Unili'il 
States  in  this  respect  (Artieios  3',l,  51 1. 


CHAPTER   VI. 

THE  ]{i(;nT  ok  suffuage. 


S5  i'O.  Provisions  in  the  Fodc'ral  Constitution  concerning  the 
Itiglit  of  Snft'rii^e. 

Till'.  ivfTulation  of  tlie  rijilit  of  siifTiiiyf  in  a  ivpublu;  corresponds 
to  that  of  the  sncccssion  in  a  nionarcliy  ;  for  it  determines  the 
nilfi's  of  tlie  coinitry.  It  was  the  intention  of  the  franiers  of  tlio 
I'VdiTal  Constilntion  to  leave  to  the  States  the  iinreslrieted  power 
ovtr  tlie  riy:ht  of  suffrage  within  their  respective  borders,  provided 
tliat  tlie  form  of  government  remained  repul)liean.  Tiie  onh'  jiro- 
visidii  upon  tiie  sul)ject  which  they  inserted  was  the  section  follow- 
ing that  wliicli  has  been  last  considered:  — 

••  'riic  House  of  Itoprcsentativea  8l;all  be  composed  of  ^rembers  ehoscu 
I'Vt'iy  st'ciinil  Year  by  the  IVoiiK^  of  ll'e  several  States,  and  the  Klecloi'S 
ill  fiu-li  State  shall  liave  tlie  (^ualiticatious  iXMiuisite  for  Klectors  of  tlic 
most  miiaiToiis  liraiieli  of  the  State  I.,egisl:uure." ' 

'I'liis  ii'iuained  unehanged  till  after  the  close  of  the  Civil  War, 
when,  by  the  h'ifteenth  and  last  Aniendiiieiit,  it  was  ordained:  — 

•■Si;iiiii\  1.  Tlie  right  of  citizens  of  the  I'liited  States  to  vote 
sliall  iKit  he  denied  or  abridged  Iiy  the  biiited  States,  or  by  any  State, 
nil  account  of  race,  color,  or  previous  couditiou  of  servitude. 

''Si;iTioN  2.  The  Congress  shall  Lave  power  to  enforce  this  arti- 
cle liy  appi'opiiato  legislation." 

S  .">!.   History  of  (.'oustitutional   Provisions  as  to  tlio  Iti^lit  of 

Suffrano. 

'i'lie  (pialiliiations  for  the  right  of  snifrage  were  diiTerent  in  the 
(liferent  (dliuiies.  In  some,  the  owneisiiip  of  a  freehold,  and  in 
otlu  IS  that  of  a  small  anionnt  of  pers(Uial  property  was  recjnired. 
Ill  otheis  again  the  right  depended  upon  the  jiaymeiit  of  taxes.    At 

§  no.  1  Constitution,  Article  I,  S(!otion  2. 
31U 


;i20 


THE   RIGHT   OF   SUFFRAGE. 


[CIIAP.  VI, 


o:ie  time,  in  New  Iliiveii  and  Miisaaclnisetts,  only  rliui'di  im'iiiticrs 
li;ul  tlie  rij^lit  of  snffnige.  In  liiiode  Island,  only  fi'ecii(>lilt:s 
c'lecti'd  freemen  of  the  towns,  a!id  tliijir  eldost  sons.'  In  all  lli;; 
fianeliise  was  eonlined  to  freemen,  and  in  most  to  whites;  Imt  in 
a  few  itseems  that  those  with  tin'  other  necessary  iinalificitioiis  wcr" 
not,  cxelndeil  on  aeeonnt  of  color.-  Similar  (li\ersitics  cKislcd  in 
t'.ie  State  constitutions  at  the  time  of  tli''  I'^cdcral  ( 'oiivcmiiiii. 
All  relifrions  tjualilications  had  been  tli 'n  aholishcd  c\cc|ii  iii 
.'■louth  Carolina,  and  the  fi-andiisc  moi'e  liherally  ;'xlended  :  in  live 
States  to  freemen  of  the  African  raee.'''  and  in  one  to  women  '  who 
lio.ssessed  tin;  ollu.'r  (jualilieations  ;  })ut  nowhere  t:>  all  free  nudes. 
Exeejit  iiei-ha[is  in  Jihode  Jshmd,  tlu;  ri^Lfht  conld  only  I)e  cxer- 
oiseil  hy  freeholders,  taxpayers,  or  tlie  owners  of  a  small  amount  of 
pei'soind  jiroi'.erty  ; ''  hut  no  approach  to  uniformity  eoiUd  he  found ; 


§  fil.  '  I'oiiro's  Chnrtcr^  auil  r,in»ti- 
tlitinns.  (ind  tlic  lolniiiiil  sliililtcs  u! 
Rhodo  111. aid,  collivtcd  in  ii  jiolo  to 
12  U.  I.,  Appcndi.-c,  ji.  .Wl. 

-  Sec  the  dissriitiiig  opinion  of  Mr. 
Juslico  Curtis  ill  Dred  SniU  v.  Saiid- 
loid,  19  How.,  3'J;!,  r,7;t,  574. 

■'  N(!W  ILiMip.sliirc,  Slii.s.^ncliuselts, 
New  York,  Now.Toist'y,  iind  Nor'.li  Oir- 
oliiia.  Suiloi'.  Miiniii'l,4Dov.  >VBiit.  (N. 
(1.  ,'20;  Coiiimoiiwciillli  r..\.vi.'s,  Ifil'icli. 
(M.1HS.  ,  211);  di.-.'.it'Mliii.L;  opinion  of 
Jud^i'  Cur'iis  in  Drod  Seol  t  r.  S;indl'ord, 
19  ];o-.v.,  ;j;i:!,  'iH-'u-l  .-Hid  citiitioiis. 

■>  ••Lucy  Siun.'.KMlH.  Ii.  i;ii:i'Uucll, 
citi/.i'iis  of  Now  .JiMSi'v,  li;iV(>  iiiailc  ;in 
iavcsliitiition,  tho  r(!.siill  ot  wliicli  is 
roiniirkalilc,  and  proves  Unit  pre- 
viously to  177(i  only  men  voted,  but 
that  in  177(1  tho  orininnl  State  eonsli- 
tulioM  conferred  on  all  inhaliitdufH 
(njen  or  \voniea,  wlilto  or  liluek).  pos- 
se.s.'^in;;  tin"  preseiilied  (luiililleations 
of  £."()  clear  estate  laid  twelve  mouths' 
residonee,  and  this  eonslitutioii  re- 
niJiineil  in  foreo  niitil  LSM.  In  17;)fl, 
the  Le^'isliituro,  in  an  act  re.nuhitin;; 
elections,  used  the  words,  '  lie  nr  ^lic>,' 
in  roforenee  to  voters.  In  3797, 
another  act  rolativo  to  electors  re- 
peatedly designates  tho  voters  as  '  ho 


or  she.'  In  the  same  year,  1797,  sev- 
enty-live women  voted  in  Eliziilicth- 
town  r<ir  tho  rcdenil  cuididato.  In 
180(1, women  nenenilly  voted  throu^li- 
out  llie  Slate  in  the  proidontial  con- 
test between  .Jefferson  and  Adaiii.s.  lu 
1S02,  a  nicmbercf  the  li'KislatDv.'f  tl'oin 
Hunterdon  County  was  ni'tunlly  elect- 
ed. In  a  closely  contested  elei'tioii,  by 
the  votes  of  tv.o  or  throe  women  ot 
color.  In  1807,  at,  a  loc'il  election  in 
Essex  County,  for  the  localinnof  tlio 
county  scut,  men  and  wotuon  (^oncr- 
aliy  participated  and  were  jointly  ini- 
jilii-atod  in  very  e.\tenslve  frauds.  In 
the  winter  of  1K07-H,  the  Ic^'islatiirc 
in  violation  of  tho  terms  of  tlieconsti- 
tulion,  jiassed  an  act  restricting  suf- 
frage to  free  white  male  adult  citizens, 
and,  ill  reference  to  these,  virtimlly 
abolished  tho  property  qunllllcatlon  cf 
X'A),  thus  extending  it  to  nil  white 
male  tax-payers,  while  excluding  nil 
women  niid  negroes.  In  IH'JO,  tlu' 
same  iirovisions  were  repeated  niiil 
remained  tiiiehajiged  until  the  ailiip- 
tioii  of  the  iircsent  Constitution  in 
18-14."  (Xew  YorkTrlliuiK'.fpinteil  I'V 
McPhersoii,  History  of  the  lioeon- 
struct  ion,  p.  '2!iH.) 
'  Tho    early   regulations  upon  the 


§^1'] 


PROVISIONS    AS   TO    RIOHT    OK    srrFUAOK. 


321 


mill  ;iiiy  attempt  to  create  it  would  have  caused  great  opposition 
til  till'  Constitution  in  any  State  wliero  a  change  was  attempted  in 


fubjoii  in  tlio  (lifforcnt  Stiiti-s  am  well 
suniiiiiiiizt'd  by  Cliipf-Jiistlci'  Chiiso  in 
Mium- 1'.  HaiiiMTsott,  21  Wall.,  1(12,  172, 
1";):  "When  tlie  FoiJonil  Constitution 
was  niloi'tiMl,  nil  tlio  Stati's,  with  tliu 
(•xi'(>|ition  of  lUiodo  I>ilan(i  and  Con- 
iiiTtiriil,  liail  constitutions  of  their 
Duii.  Tlii-'Hu  two  contiuiR'd  to  act  im- 
iliT  tlicir  diurters  from  tlio  Crown. 
ri'im  an  examination  of  thoso  constl- 
luliuns  wt>  llnd  that  in  no  State  wero 
.ill  fitizciiH  perinittod  to  vote.  Each 
State  determined  for  itself  who  should 
liiivc  tliat  power.  Thus,  In  New 
Himi'ishiro,  'every  male  inhabitant 
ot  I'acli  town  and  parish  with  town 
I  I'ivilej;!";,  and  places  unineoriiorated 
in  ilie  Sliite,  of  twonty-ono  years  of 
ap'  luid  ujiwards,  exeeiiting  paupers 
aud  perffons  excused  from  paying 
tiLKes  ut  their  own  request,'  wero  its 
viiti'is;  in  JIassachusetts,  '  every  nuilo 
iuliabitant  ot  twenty-one  years  of  ago 
aiwl  uinvardg,  having  a  freehold  ostato 
witliin  the  commonwealth  of  the  an- 
nual iniome  of  three  pounds,  or  any 
tsiato  of  the  value  of  sixty  pounds'; 
in  i'.lioile  Inland  'such  asareadnutted 
fri'e  if  the  company  and  society  '  of 
tlio  11  limy  ;  in  Conneetleut  such  por- 
fiinsn-i  hail  'maturity  in  years,  quiet 
nnil  peiicenble  behavior,  a  civil  eon- 
viTsalinii,  and  forty  shillings  freehold 
iirturly  pminils  personal  estate,'  if  so 
leitilli'd  by  the  selectmen ;  in  New 
Ynrk,  'every  male  Inhabitant  of  full 
aco  will)  shall  have  personally  resided 
within  one  of  the  eounties  of  the  State 
for  si.\  months  immediately  preceding 
till'  ilay  of  election  ...  if  during  the 
time  aforesaid  ho  shall  have  been  a 
frpeholiliT,  possessing  a  freehold  of 
the  value  of  twenty  pound  .  within  the 
I'ouuty,  (H-  have  rented  a  tenement 
therein  of  the  yearly  value  of  forty 
sldWugs,  and  been  rated  and  actually 


[laid  taxes  to  the  State';  In  New  Jer- 
sey, '  all  inhabitants  ...  of  fullage  who 
are  worth  lifty  pounds,  proclamation- 
money,  clear  estate  in  the  same,  and 
have  resided  in  the  county  iu  which 
they  chilm  a  vote  for  twelve  months 
immediately  preceding  the  election'; 
in  Pennsylvania,  '  every  freeman  of  the 
age  of  twenty-one  years,  having  re- 
sided in  the  State  two  years  next  be- 
fore the  election,  and  within  that  time 
paid  a  State  or  county  tax  which  shall 
have  been  assessed  at  least  six  months 
before  the  eleclitm  ' ;  in  Dehiwaro  and 
Virginia,  '  as  exercised  by  law  at  pre- 
sent'; in  Maryland,  'all  freemen  above 
twenty-one  years  of  ago  liaving  a  free- 
hold of  (Ifty  acres  of  land  in  the 
county  in  which  they  offer  to  vote  anil 
residing  therein,  and  all  freemen  hav- 
ing property  in  the  Slate  above  the 
value  of  thirty  iiounds  current  inom  y, 
and  having  resided  in  the  county  iu 
which  they  offer  to  vote  one  whole 
year  next  preceding  the  election' ;  In 
North  Caroliuii,  for  senators, '  all  free- 
men of  the  age  of  twenty-ono  years 
who  have  been  inhabitants  of  any  one 
county  within  the  Stale  twelve  moiilhs 
immediately  preceding  the  day  of 
election,  and  possessed  of  a  freehold 
within  the  same  county  of  fifty  acres 
of  land  for  six  months  next  lieforeaml 
at  the  day  of  the  election,'  and  lor 
members  of  the  House  of  Commons 
'  all  freemen  of  the  age  of  twenty-one 
years  who  have  been  iidinbitanis  in 
any  one  county  within  the  Slate 
twelve  months  immediately  preceding 
the  day  of  any  election,  and  shall  liavi; 
jiaid  public  taxes';  in  South  Carolina, 
'  every  free  white  man  of  the  age  of 
twenty-one  years,  being  a  citizen  of 
the  Slate  and  having  resided  therein 
two  years  previous  to  the  day  of  elec- 
tion, and  who  hath  a  freehold  of  llfty 


822 


I'liK  ititiiiT  <ir  srii'i!.\(iK. 


[<ll  \l'.  VI. 


till'  I'xistiujjf  unlcr.''  Daiij^'cr  was  aiiticipiUud  lest,  slioulil  tlic  pii\nr 
to  i-cslrift  till'  v\<^\\l  lie  j^raiitiMl  Id  ( 'i)iij,Mfss,  tlic  lihfily  iif  all  or 
tilt'  ri^^lits  (if  iinipi'ity  in  .soiui'  iniy;lit  hi'  I'lidaii^fcii'd.  It  was  lic- 
licvi'd  tliat  to  liave  siiliiiiitti'd  tlio  lij^dit  to  volt;  lor  iiii'iiilii'rs  of 
Coiigit'ss  to  till.'  k'gislative  discri'tiou  of  tliu  States,  "would  li;ive 
rendiTi'd  too  deiiiMideiit  on  tliu  State  governments  that  liiancli  of 
the  federal  goveninieut  that  ought  to  he  dependent  on  llic  pid- 
|ile  alone.""  I'\)r  these  reasons,  the  i)rovl.sion  in  the  Constiiiuidii 
w:>s  adopted,  and  it  i^xeitud  little  dismission  iu  the  Federal  or  St;:it' 
Coi.  veutioiis. 

Tae  Artii'les  of  C'onfi'deraliou  directed  that  — 

"  foi  the  more  convenient  inaiiii^eini'nt  of  tiie  general  iiitere,Hls  of  tlie 
IJiiitnl  States,  delegtites  shall  be  annually  appointed,  in  such  maiinor  as 
the  legislature  of  eacli  State  shall  ilirecl,  to  meet  in  Congress  on  llic  first 
Monday  iu  November  in  every  year,  with  a  power  reserved  to  eaeli  State 
to  recall  its  delegates,  or  any  of  them,  at  any  time  within  the  year,  and 
to  semi  others  iu  their  stead  for  the  remainder  of  the  year."' 

Ill  all  of  the  States  hut  two,  delegates  to  the  Continental  ('(in- 
gress were  appointed  Iiy  the  State  legislatures.  In  Conncitii  iit 
and  Rhode  Island,  they  were  eleetei.  by  the  people."  I'ptiu  the 
Hi'st  vote  in  the  convention  on  the  proposition  — 

"  that  the  memliers  of  the  first  branch  of  the  national  legislature  ought 
to  be  elected  by  the  people  of  the  si'verul  States," 

six  Suites  voted  ay ;    two,  no  ;  and  two  were  divided.'* 

Six  days  later,  a  resolution  "  that  the  first  branch  of  the  national 
legislature   be  elected  by  the  State  legislatures,  and  not  by  tliu 


acres  ot  himl,  or  a  town  lot  of  which 
ho  liatli  l)ccu  loyally  siiizcil  uud  pos- 
sessed at  IciiBt  six  iiionllis  licfuresucli 
election,  or  (not  liavinK  such  freehold 
or  town  loti,  halli  been  a  resident 
within  tlie  elcetion  district  iu  whidi 
he  iilTcrs  to  giN  e  his  vole  six  uionllis 
before  said  election,  nnd  hath  paid  ii 
tax  thc>  preceding  year  of  three  shill- 
ings sterling  towards  the  support  ot 
the  goveriUMOut ; '  and  in  Georgia 
such  'citizens  and  inhabiUints  of  the 


the  election,  and  shall  have  P'siili'd 
six  months  within  the  county.    " 

"  See  the  debate  reported  in  Minll- 
sou  Papers,  Elliot's  Debates,  'id  iil., 
vol.  V,  pp.  :t85-;)SH. 

'  Tiio  Federalist,  No.  lii. 

»  .\rticlcs  of  t'onfedoratlou,  V. 

9  Tlio  Federalist,  No.  xl. 

"*  Yeas:  Massachusetts,  New  York, 
Peuusylvauia,  Virgiida,  North  Caro- 
lina and  Georgia.  Nays  :  New  Jerai'y 
and  South   Carolina.     Divithd;  t'""- 


Slate  as  shall  have  attained  tlie  age  uectlcut  and  Delaware  ( Wiiilisnn  Pa- 
of  twent.v-one  years,  and  shall  have  pers,  Elliot's  Debates,  2U  ed.,  vol.  v,  p. 
paid  tax  for  the  year  next  proueding      137). 


s-'i.] 


IMtOVISKlNS    AS    TO    HKiHT    OK    SfKIMJAdi:. 


1523 


]i((i|ili',"  was  made  by  OLMieral  Cliarles  C.  I'inukiit'y  (jf  Soutli  Cari>- 
liiiii.  and  ncijativL'd  by  eif,dit  Status  aj^aiiist  tlii'i'c."  Two  wi'oks 
iil'inwards  a  resolution  tbat  ivjiresentativts  •■  oiiglit  to  Ik;  appointed 
ill  siicli  manner  as  the  legislature  ol'  eacli  State  shall  direct"  was 
rrjcitcd  by  a  vote  of  six  States  to  four  in  ;  '  favor;  one  being 
ilivided.'-  An  attempt  by  (Jouverneur  Morris  to  eonline  the 
fiaiiciiise  to  freeholders  obtained  the  supijort  of  no  State  but 
Diliiware.'^     In  the  end  unanimity  prevailed.'^ 

I'Vom  the  beginning  of  representation  in  lOngland,  the  mem- 
li(  IS  of  the  House  of  ("onunons  were  chosen  by  a  direct  popu- 
liu'  vote ;  while  in  France  representatives  of  the  third  estate  in 
tin'  States  fieiioral,  and  until  the  middle  of  the  j)resent  century, 
iiuMiibcrs  of  tlie  jVssembly,  were  usually  chosen  by  elec:toral  col- 
luges,  so  that  the  people  voted  only  for  electors.  The  advantages 
iif  tliis  system  were  supposed  to  be  that  the  selected  wisdom  of 


11  .TiiiK!  I'ltli,  1787  ;  Coiiii('ctl<'\it,  N'cw 
J.'i-ii'y,  South  Caniliim,  ay;  Ma^-sa- 
claisi'llH,  New  Ydi'lv,  Pt'Miisylvaiiia, 
D.'lawan-.  JLirylaiid,  Vii'iiiiiia,  Niiilli 
('.■iniliiiii,  (ti'iirt?ia,  no  (Ibid.  pp.  t(iO- 
IM). 

1'^  This  resolution  was  moved  by 
Gen.  Cliarles  C.  Pinokney  of  South 
Cuniliiia.  Yeas :  Couiiecllcut,  New 
Jrisi'y,  Delaware  ami  South  Carolina. 
Nays:  Mas.sucliusetts,  New  York, 
r.'iui'^ylvaiiia,  Virginia,  North  Caro- 
Ihia,  (ieoi-Kla.  (Iliiil.,  pp.  2'2;i-22t.) 
Jliirylaiiil  was  (livi(l(>(l   (ibiil,  p.  3HH). 

iitiuuvcrneiir  Morris  said:  "He 
had  loii},'  leanieil  not  to  lie  the  diipo 
(if  words.  Tlie  .sound  of  aristocra(^y, 
till  iifore,  had  no  elTect  upon  him. 
It  was  the  thing,  not  the  name,  to 
which  lie  was  opposed;  and  one  of 
hi.f  prineipal  ohjoelions  to  the  Consti- 
tiiliiin,  as  it  was  now  before  us,  is, 
that  it  threatens  the  eounlry  with  an 
aii!-t(iiiaey.  The  aristocracy  will 
Krew  out  of  the  House  of  llepresentii- 
tivcs.  (iive  the  votes  to  people  who 
liavc  MO  property,  and  they  will  aell 
thcrii  to  th(>  rich,  who  will  be  able  to 
liiiy  (heiii.     We    should    uot  couUue 


our  attention  to  the  present  iiionient. 
The  time  is  not  far  distant  when  tliis 
(■ouiitry  will  alxiund  with  inechaiiics 
and  niaiiura 'turers,  who  will  receive 
llieir  bread  from  their  employers.  Will 
such  men  be  the  secure  and  faithful 
(.[iianlians  of  liberty?  Will  they  lie 
the  imprefjnablo  barrier  against  aris- 
tocracy? Ho  was  as  little  duped  by 
the  association  of  the  words  '  ta.\alion 
and  representation.'  The  man  wlio 
does  not  nive  his  vote  freely  is  not 
repri'si'iited.  It  is  the  man  who  die- 
tati's  the  vote.  Children  do  not  vole. 
Why?  lieoause  they  have  no  v.MI  of 
their  own.  Tlie  i^^norant  and  di .  d- 
eiil  can  bo  as  little  trusted  with  tiio 
public  interest.  Ho  did  not  ooiicelvo 
the  difllculty  of  deliuing  'freeholders' 
to  be  insuperable;  still  less  that  the 
restrict  ion  would  be  unpopular.  Nlne- 
teiilbs  of  th(>  people  an-  at  present 
freeholders,  luid  these  will  certainly 
be  pleased  with  it.  As  to  merchants, 
Ac.,  it  they  have  wealth  and  value 
the  riylil,  they  can  ae(iuire  it.  If  not, 
they  don't  deserve."  (Ibid.,  Jip.  3b0, 
387.) 

"  Ibid.,  p.  389. 


:m 


THK  iJiciiT  OF  sri-i'i;Ac!i;, 


[ril.M-, 


VI. 


llic  coUcjjc  was  prciitcr  tliaii  tlio  ii^Ljit'LTate  wisdom  of  tin-  jKoplc. 
Ill  iinii'tico  it  liiis  l)L'('ii  I'oiuiil  tliat,  siicli  ;i  com.sn  on  tin'  ()iu(  iiaiid 


ti'iids  to  lower  tliu  clmnictiT  i 


.1'  til 


■|)rcsi'iit:itivi',  siiiiH'  it  facil- 


itates iutriujue  if  not  ln'iliciy.  aii'l  on  tlie  otlier  lessens  liis  eare 
for  his  eonslitnents.  to  wlioni  lie  is  not  diicetly  resjionsilile,  'I'he 
oxperiitnee  of  I'' ranee  lias  tans^lit  tiiat  eouiHiT  as  well  as  otlieiii 
tlie  iinwisdoni  of  sneii  a  nietliod  of  election."' 


Tlie  natural   imitatii 


on  ol  the  jiiactiee  m  the  niotliiM'  eoinitry 
had  made  the  eolonial  lej^isla tares  elected  directly  hy  tlii!  jieojile, 
and  tilt!  same  practice  liad  prevailed  in  the  eaily  State  constitu- 
tions, except  in  Maryland,  where  the  senate  was    ''oseii  tlironjjh 


tl 


lis   pIDVl- 


an  intermediate  hody  of  electors.     In  the  dehati 
sion.  the  advocates  of  a  choice  of  the  lower  liou.  'onjjfrcss  by 

the   State   legislatures   i-csted   upon    the   ar<,'iiment   of    Siiernian. 
"The  jieople."  he  said,  "  iimiiediatcly  should  liavi-  as  little  to  do 


lay 


le  ahoiit   the   L'overnmcnt.     'i'lu'V  want   information 


1(1 


are  constantlv  liahle  to  h 


^led. 


Tl 


lose   wild   pi'cva 


ilcd.  ri 


ferre<l  to  the  practice  in  Knj^dand  and  the  Stales  as  pi'ovin^'  the 
safety  and  ailvanl.iy'cs  of  a  ilirect  jpopnlar  election,  and  pointed 
out  the  dauLTcr  of  jilaciii;;  tlie  existence  of  the  national  pivcrii- 
mont  at  the  mercy  of  the  State  Icjrislatures.      'i'hey  applauded  tlie 


remark  of  W 


ilsoi 


i:   "On  examination,  it  wouhl  he  found  that  die 


opposition  of  the  States  to  fcdeial  measui'cs  had  pi'oceedcd  uiucli 
more  from  the  olliceis  of  the  States  than  from  the  people  at  larife."'' 


Tl 


ic  suiijcct  remained  within   t'.ic  exclusive  jnrisdictioi 


till 


States  until  the  close  of  t!ii.'  Civil  War.  'i'hey  j;radually  extended 
the  frciichisi'.  except  as  rejrard.s  ncy-rocs  and  women,  till  the  riL,dit 
of  sufl'raL-'c  in  State  and  Federal  (dections  was  possessed  hy  every 
free  while,  male  iuhiliilant,  a  citizen  of  the  I'uited  States,  of  soiiiid 


nni 


id 


:iiiil  iioi  a  iiaupcr.  \vi 


til  no  other  ([ualitication;  excejit  in  a  fci 


States  the  jiiiyinent  of  a  poll-tax  or  capacity  to  read  and  write, 
anil  in  IMiodc  Island  a  discrimination  a.;aiiist  citizens  of  foreign 
birth,  U[)on  wiimii  a  jiropcrty  (]ualificatioii  was  imjiosed,  hesidos 
a  pro|)erty  (jiialilication  for  all  voters  at  municipiil  elections,  wliiili 


luthorized  tl 


imposition  o 


f  a  tax  01'  the  expenditure  of 


money. 


"■'.See  ]iurk'''s  Oljserviilioiis  on  llio 
FroUL'U  Ki.'voliiuoi). 


11  J[;ulison  Piipnrs,  Elliot's Dobiites, 
2il  cil.,  v.il.  V,  ]).  13fi. 
>'  Ibkl.,  pp.  13G,  137. 


rl] 


THK   KIKTKKNTll    A.MKNDMKNT. 


82r> 


t«  na.    TIk-  Piftociitli  AiiiriHlinoiit. 

'I  tic  coiitlitiiiii  of  till'  ciniiiiidiiati'd  liliicl.s  in  tin;  iiismrcitioiiiiry 
St;iti'<  at  till'  cldsr  (if  till!  Civil  War.  si'i'iiii'il  tu  iliMiiaiiil  .some  iii- 
liiimsitioii  fill  lli>ir  ii'lirf:  hut  I'veii  llii'ii  llif  si'iioiis  loiisuijueiiceN 
of  II  siiiiili'ii  I'Visli  into  till'  fianiliisf  of  a  lionic  of  iiu'ii  iinaccUH- 
toiiioil  to  loiitrol  tiiL'ir  own  juisous  and  jirojii-rty,  iiiiii'li  loss  fitted 
to  iiiil  in  llio  governiniut  of  States,  in  tlii'ee  of  wliieh  tliuy  were 
ill  a  majority,  mado  botli  the  I'residents  and  Con<:fri'ss  j)ause. 
Liiieolii  in  liis  attempts  at  reconstruction  wnit  no  fiirtlier  tlian  a 
tentative  suj,''j^estion  tliat  one  State  should  ;_;iaiit  the  ri<,dit  of  suf- 
ir.[i^v  to  colored  men  who  had  fouoht  in  the  I'nion  army.'  .lohn- 
soii  tried  hy  his  influence  tu  iniliire  the  Southern  States  to  grant 
the  hallot  to  thosi;  who  could  read  ami  write  or  who  paid  taxes  on 
reiil  estate  assessed  at  two  hundred  and  tifty  dollars."  Hut  neither 
reronmicndation  was  adojited  ;  and  the  invariable  result  of  an  oli- 
fjanliy  followed,  namely,  legislation  oiipressive  to  the  disfranchised 
class.''  Congress  at  lii-st  had  proposed  no  further  remedy  than 
that  I'ontaincd  in  the  Fourteenth  Amendment,  which  reduced  the 
representation  of  any  State  that  denied  the  right  of  suffrage  to  any 
part  of  its  male  adult  population.  When  that  clause  of  the  amcnd- 
ini'iit  was  first  liefore  the  Senate,  on  Mai'ch  lHh.  1S(!(I.  Henderson 
uf  .Missouri  moved  as  a  suVjsiitutc:  "No  State,  prescribing  the 
ipuililications  rciiuisito  for  electors  therein,  shall  discriminate 
against  any  person  on  account  of  color  or  race  ;  "  and  said  of  his 
propo-sition :  "  I  am  aware  that  the  Senate  will  vote  it  down  now. 
Let  them  vote  it  down.  It  will  not  be  five  years  from  to-day  be- 
fore this  body  will  vote  for  it.  You  cannot  get  along  without 
it."''  Only  nine  other  Senators  voted  for  his  motion.  It  was 
not  until  after  the  former  slave  States  liad  rejected  the  Four- 
teenth Amendment,  that  Congress  intciposed  to  establish  negro 
sulVrage.  Hy  the  Keconstruetion  acts,  of  which  the  iirst  was 
passed  over  Johnson's  veto,  March  2d,  IStiT,'"'  the  States  formerly 
the  scat  of  the  insurrection  were  compelled  by  military  force 
to   adopt  constitutions    extending  the    right   of    sufTrage    to  all 


§  '>■>.  1  Supra,  §  ;t8,  iioto  40. 
''  Supra,  §  38,  over  nolo  65. 
"  Supra,  §  38,  over  nolo  60. 


*  Kliiinc,  Twenty  Years  in  Congress, 
vol.  ii,  p.  203. 

'  Supra,  §  38,  over  nolo  103. 


326 


THE    HKIHT    OK   SUFFRAGE. 


[CHAl*.  VI, 


adult  colored  men  within  their  jurisdiction.''  At  the  same  time 
no  step  was  taken  toward  conijiellinff  .similar  action  in  tlic  loyal 
Stites,  altliouirh  a  nunil)er  of  tlicm  voluntarily  adopted  it.  The 
platform  of  the  Republican  party,  upon  which  (Jrant  was  elected 
in  1808,  contained  tlie  plank :  — 

"  The  guaranty  by  Congre.ss  of  cqunl  suffrago  to  all  loyal  men  at  the 
South  wiiw  (loinanileil  by  every  consiiUnation  of  i)id)lie  wafety,  of  irrati- 
tude,  and  of  justice,  and  must  be  maintained;  while  the  question  of 
suft'rajre  in  all  the  loyal  States  properly  belongs  to  the  people  of  those 
States.'" 

"  There  was  .something  so  obviously  unfair  and  unmnnly  in  the 
proposition  to  imi)0.se  negro  suffrage  on  the  Southern  States  by 
national  power,  and  at  the  snuie  time  to  leave  the  Northern  States 
free  to  decide  the  (pu'stion  for  tiiemselvcs,  that  the  l{ei)ubli(;aiis 
became  hcaitily  ashnmcd  of  it  long  before  the  political  eanvasii 
had  closed."  ^ 

At  the  opening  of  tiie  ihird  session  of  the  Fortieth  Congress,  in 
December  of  that  year,  various  propositions  were  offered  in  both 
houses  for  an  amendment'  to  the  Constitution  which  would  extend 
negro  sutfrnge  throughout  the  country.**  On  .January  J'Oth.  181)0, 
the  House  of  Heprcscntatives,  by  a  vote  of  one  hundred  and  (ifty 
to  forty-two,  thirty-one  not  voting,  passed  the  Fiftcentli  Amend- 
ment in  thi!  following  forn?  hieh  differed  in  oidy  a  few  iininii- 
terial  words  from  that  finally  adopted  :  — 

'•  Si;c.  1.  The  right  of  any  citizen  of  the  United  States  to  vote 
shall  not  he  deiucd  or  id)ri(lged  by  the  I'nited  States  or  by  any  State '»;/ 
n'liKoii  of  race,  color,  or  previous  condition  of  Klarcr;/  of  itiiif  ci(i::i'n  or 
W'f.v.t  1)/  n'lixciin  of  the  Uiiitcil  Stitti'x. 

'•  ,Si-,c.  i.  The  Congress  shall  have  power  to  enforce  by  appropriate 
legislation  thv  provifvni^  of  this  article."  '" 

The  Senate  desired  a  more;  radical  remedy,  which  would  jirevent 
discriniinatioh  by^  the  States  tiu'ongh  religious,  educational,  (ir 
property  qualifications,  as  well  as  those  forbidden  by  the  ainend- 


«'  Supra,  §  US.  »  Ihld.,  p.  4i:i. 

"  Mil'luirsou,    History  of  the   Eo-  I'J  .Mi-l'luTsciu,  Hip'.oiy  of  tlm  Re- 

constriK'tloii,  p.  :tfit.  ednRtnietlcin,     p.     3!)!).      Tlie    itulics 

"  DUiiue,  Twenty  Years  In  Congross,  lienoto  words  not  used   in  the  llnal 

voi.  ili,  p.  412.  form. 


:%i 


§o2.] 


THE   FIFTEENTH    A.MENDMICNT. 


827 


mi'iit  wliich  the  Ilonso  jirnposoil ;  and  wliicli  «oul(l  extend  tlu) 
jndtcction  to  tlie  riglit  to  hold  office  us  well  us  tlie  I'ij^lit  to  vote." 
I'lHiii  tlie  motion  of  Henry  Wilson  of  .M;iss:iehnselt;s,  that  body 
aduiited  an  amendment  whieh  wonhl  liave  altered  the  eonstitutions 
(if  more  tlian  half  tlie  States  in  the  I'nion :  —  '- 

"  Xo  diserimination  sliall  lie  made  in  any  State  aniong  the  citizens 
(if  the  Iniled  States  in  the  exercise  of  tlie  eleetivo  fianeliiso,  nr  iit  the 
rlijlil  t')  huld  ojl'ici'  in  any  State,  on  aeeonut  of  race,  color,  uaticily, 
property,  education  or  creed."  " 

A  further  atnendment  was  added  to  alter  the  second  article  of 
the  Ciinstittition  so  as  to  prevent  the  appoiiitnieiit  of  ixesidential 
(■l(\t"is  liy  a  State  legislatnre  ;  and  tlie  measure  returned  to  tlie 
lliiii>e,  which  refused  to  concnr  in  either.  'Ilie  Senate  refused  a 
I'diirerence  which  the  Houses  re((nested  ;  and  passed  a  new  amend- 
ment in  the  form  finally  adopted,  except  that  the  words  "to  hold 
ollice  "  were  added  after  "  the  right  to  vote."  In  their  debates 
the  Democrats  made  a  strong  point  that  the  ([Uestion  should  not 
lie  suhmitted  to  the  legislatures  then  in  session,  wlio  had  not  been 
cluisen  with  a  view  to  such  action,  which  the  national  platform  of 
the  l!ci)ubliean  party  had  exjiressly  disclaimed."  Propositions  to 
siiiiMiit  it  to  the  legislatures  next  chosen  and  to  State  'onventions 
were,  however,  voted  down.'"' 

Tlic  House  refused  to  accept  the  senatorial  proposition,  and 
piisscd  an  amendment  substantially  like  that  liist  adopted  by  the 
Senate,  iiroliibiting  dis(|ualiliealioii  from  olliee  as  well  as  suffrage 
••n!i  account  of  race,  color,  nativity,  property,  creed,  or  previous 
(■(iinlilidii  of  servitude."  'J'he  Senate  refused  to  accept  this  then. 
\  ciiiil'crcnce  was  held,  which  resulted  in  .  recommendation  of 
the  fdiiii  which  had  origiiiiilly  ])asscd  the  House,  with  a  few 
verbal  changes.  On  February  •J.")th.  1S()!\  the  Amendment  finally 
jiasscd  the  House,  and  on  the  2t!tli  the  Senate,  by  a  majority  of 
iiiiirc  than  two-tl.irds  in  eacli ;  and  was  sent  to  the  State  legisla- 
tures in  its  liiial  form  :  — 


"  Tliiil.,  p.  1112. 

'■-  HlaiMr'.'rwcTily  Years  in  CdiiKreas, 
vnl.  ii,  p.  41(1. 

'■  Iliiil.,  pp.  4ni,  417;  MePlierson, 
Ilisldiy  of  the  Bijconstruetion,  pp. 
4Ull-l()4. 


'*  niaiiie,  wlio  volcil  f(ir  llio  Ainouil- 
nioiit,  iiricrwnrda  mlmiili'il  tli.'it  the 
Idiitit  WI18  well  talicMi  (Twenty  Years 
iu  CoiiKi'ess,  vol.  li,  pp.  413,  414  i. 

»  11)1.1.,  p.  41.1.  Mel'her.son,  His- 
tory of  llio  Keeinislnielioii,  p.  40S. 


328 


THE    HICHT    OK    Sri-TltAGE. 


[CHAl-.  VI. 


"  ARTICLE   XV. 

"  Skction  1.  The  right  of  citizens  of  the  I'nitcd  States  to  vote 
sliuU  not  lie  denied  or  uliridiied  by  the  liiited  States  or  by  any  State  on 
aeeount  of  race,  color,  or  previons  condition  of  servitude. 

'■Skotion  2.  The  Consrress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation."  '" 

Tlio  iJLH'iiliar  language!  used,  which  gives  color  to  the  claim  that 
citizens  of  the  United  States  previously  jiossessed  the  rij^ht  of 
suffrage,  was  chosen  to  conciliate  those  who  claimed  tliat  tlm 
Fourti'enth  Amendment  had  already  conferred  the  franchise  upon 
all  citizens  of  the  United  States  ;  ^"  a  po.iition  which  the  SiiprciiKi 
Court  has  f  ince  said  was  untenable.'" 

On  April  lOtli,  ISO'.t,  (irant  approved  an  act  of  Congress  wliicli 
made  tlie  n'tilication  of  tliis  amendment  a  condition  precedent  to 
the  admissi(i:>  of  Virginia.  Mississijipi  and  'J'exas  to  re[)res('ut:i- 
tion ; ''•'  and  on  Decemlicr  '2'2d,  an  act  which  took  iVom  (icorfrii 
the  representation  tliat  had  liecii  ivstored  to  her,  and  made  lur 
adoption  of  the  Amendment  a  condition  precedent  to  her  rclialiii- 
itation.-" 

During  the  following  year,  the  Amendment  was  ratified  by  tlie 
legislatures  of  the  following  States  :  Alabama,  Arkansas,  Cdii- 
ni!cticut,  {'"lorida,  (ieorgia,  Illinois,  Indiana,  Iowa,  Kans;is,  jyoii- 
isiana,  Maine.  Massacluiselts.  Michigan,  Minnesota,  Missiani, 
Mississippi,  Nebraska.  Nevada.  New  ilani[)sliire.  New  York.  Noiili 
Carolina, Ohio,  Pennsylvania,  liliode  Islam!,  South  Carolina,  Texiis, 
A'crmont,  \'irginia,  \\'est  N'irginia  and  Wisconsin,  tbiity  in  ail, 
twenty-nine  only  being  essential  to  its  adoption.  ( )!'  tliese.  tlie 
New  York  legislature,  subse([uent  to  the  ratification  by  some,  bat 
before  three-fourths  of  all  the  States  had  ratiiie  ',  repealed  the  riiti- 
lication  of  New  York.  Since  enough  ratilicaiions  were  obtniiud 
without  counting  that  Slate,  the  cjuestion  bei;ame  innnatcrial. 
The  h'gislatures  of  Ohio  and  (ieorgia,  to  which  the  (pU'stion  wiis 
lirst  submitted,  refused  a  ratification;  Ijut  a  subsequent  Ohio  h'g- 


i»  Mi'lMinrsoii,  History  of  tlu-  Kc- 
bi'llion.  pp.  'll):t    wr,. 

"  Si'u  the  Speeches  of  Cliiirli's 
Suiiiiiir  ami  (toort^o  F.  Kilimiiuls  In 
tli((  Si'fiate,  Fob.  11,  IHGU ;   quoti'd  by 


.Iiid;;!'  Coolcy  lii  Ktory  cii  tin'  Coiistl- 
tiitioM.  rilli  I'd.,  ij  l'.li;;».  nolo  1. 

i«  IT.  S.  r.  lti'e,sc,  M  V.  S.,  -^U,  217. 

i"  K;  S;.  lit  L..  |).  (!.■).     Supra.  §  ;W. 

"  KJ  Si.  at  L.,  p.  SO.     ,S'H;>ra,  §  'M. 


"'-•J 


TUK    FIFTEKNTH    AMENDMENT. 


82» 


islatnio,^'  and  <-he  Georgia  legislature  after  its  reorganization  under 
;iii:ul  of  Congress,^  gave  the  ratilieations  of  their  respective  States. 
Till'  li'u-islatiuvs  of  California,  Delaware,  Kentucky,  Maryland, 
uiianiiiHmsly,  and  New  Jersey,  voted  against  a  ratilication.  In 
TiMiMi'sscc,  the  Amendment  failed  to  pass  the  ITonse,  and  was 
never  reported  to  the  Senate  hy  tlie  Committee  on  Federal  Rela- 
tions, to  whom  it  was  referred.  On^gon  also  failed  to  ratify.''^  On 
March  :50tii,  1870,  tiie  Secretary  of  State  iiled  a  certificate  stating 
that  the  Fifteenth  Amendment  had  heen  adopted.^ 

The  Fifteenth  Amendment  was  self-executing,^  and  inunedi- 
at<'ly  upon  its  adoption  erased  from  all  State  constitutions  and 
staiiitcs  the  provisions  ohnoxious  to  its  commands.^  "It  does  not 
cdnfiM'  the  right  of  sufTiage  on  any  one.  It  merely  invests  citi- 
zens of  tlic  United  States  with  the  constitutional  right  of  e.x- 
eiiiplion  from  discrimination  in  the  enjoyment  of  the  elective 
fraiicliise  on  account  of  race,  color,  or  pievimis  condition  of 
servitude."  '■^ 

'-'  MiPliprson,  History  of  llio  Ue- 
coiiKli'iiciioii,  p.  nCi'i. 

--  Siii>ra,  §  ;iH,  over  notes  150,  l.'iT. 

■-'  MePlierson,  History  of  the  llo- 
coMsiriielioii,  pii.  488  -t'.IS,  r).)7-5(')2. 

-'  Iliiil.,  p.  515.  Tlio  struKglo  in 
tlio  Imliiuia  le^islaturo  over  iiie 
qia'slioii  of  m(ill<'iition  gnvH  oeension 
tci  bliiirp  pailiaiiieiiliiry  taeliea.  An 
iiUeiiipl  liy  tlie  Deiiioenitle,  Benators 
to  |iii>veiit  a  (luoriini  liy  (lieir  iiliseuee 
\v;is  preveiili'd  l)y  loeliinn  the  door 
nnd  tlien  eountin^!  thoMS  wlio  n'fiu.ed 
to  vole  (see  the  N.  Y.  Worlil,  May 
3,  1HHS-.  In  (ho  lower  liouse,  all  hut 
ti'U  of  the  Deiiioerats  resittned,  thus 
redmiiii,'  the  iiiemljership  to  less  than 
two-thirds  of  tlie  members  elected. 
Those  who  roinainod  called  attention 
to  the  constitutional  provision,  that 
"two-thirds  of  each  house  sliall  con- 
slilnle  a  quorum  to  do  business,"  and 
insisted  that  the  assembly  conse- 
(|Ui'id.ly  I'ould  not  ar't  upon  Iheaniend- 
"ii'iit.  The  speaker,  however,  ruled 
thai  this  section  cited  ilid  not  apply 
to  pruceedluys  upon   the  nitillcation 


of  an  iniiendoii'iil  to  the  Federal  Con- 
stitul  Hi«  action   was  approved 

Ipyai.  ,  rilv  of  the  niemlicrs  present, 
some  taKinij  lli"  position  that  tlio 
ju-esenco  of  l«. -thirds  i.f  tln'  actual 
iiiombors  of  the  liow-i-  was  suflicient 
in  all  oases.  Tlio  amendment  was 
ralilled  by  two-thirds  of  the  niemliers 
and  a  majoi-ily  of  all  originally  electpil, 
and  then  question  as  to  its  validity 
was  raised  in  ('onj^ress.  (McPlu'i'son. 
Ilislory  of  Keconstruclion,  pp.  •lOC 
•11)1,  note;  Ou'bin  v.  IJutler,  Tafi 
Senate  Klectioii  Cases,  conliniieil  by 
I'lirber.  i)p.  511,  551  ;  infra,  Ch. 
XVIII.) 

"Civil  Iti^'hts  Cases,  10!)  U.  S., 
3,  20. 

-I''  Neal  V.  Dolawaro.  103  U.  S.,  370, 
383. 

••i'  r.  S.  r.  Harris.  10(1  U.  S.,  02:),  (!37  ; 
infra,  ^53.  In  Mills  v.  (Ireen,  (37  Fed. 
11.,  HIS,  which  wasafterwards  reserved 
upon  another  point,  and  is  a  case  of 
very  doubtful  authority,  .TiidKc  (iofT 
hold  that  this  ameiiilment  invalidalod 
u  ri.'gistrutlou  law  uf  SuulU  Curoliuu^ 


S80 


THK    KKiHT    Ol''    SUFKKA(}E. 


[CHAI'.  V[. 


5?  na.  The  Power  of  Coiipfress  over  the  Kl{;ht  of  Siii'tra;;^. 

Till!  only  express  power  of  Congress  to  affect  tlie  riglit  of  siif- 
fninje  witliiii  tlie  States  is  contained  in  the  second  section  of  the 
Fifteenth  Amendment,  which  provides  — 

"  that  the  C'o!igres9  shall  have  power  to  euforce  this  article  hy  ap|)ro- 
priate  legislation." 

Pursuant  to  this,  Congress  may  pass  a  law  to  protect  the  right 
to  vote,  at  least  for  representatives  in  the  lower  House,  l>y  niiikini' 
criminal  a  conspiracy  to  prevent,  by  force  or  intimidation,  a  person 
from  exercising  liis  right  of  suffrage  at  sucli  an  election  on  account 
of  his  race,  color,  or  previous  condition  of  servitude.'  This 
amendment,  l.owever,  gives  Congress  no  power  to  legislate  for 
the  protection  of  any  civil  rights  of  colored  men,  or  othere,  except 
the  right  to  vote  free  from  discrimination  as  aforesaid.^  It  wiis 
tlie  opinion  of  the  Supreme  Court  of  Pennsylvania,  that  the  act  (if 
Congress  which  provided  that  "  all  persons  who  have  deserted  the 
military  or  naval  service  of  the  United  States,  who  .shall  not  nturn 
to  said  service,  or  report  tluimselves  to  the  provost-marshal  within  ' 
sixty  <lays  after  the  proclamation  hereinafter  mentioned,  shall  he 
deemed  and  taken  to  have  vo!;mtarily  relinquished  and  forfeited 
their  rights  of  citizenship,  and  their  right  to  liecome  citizens,  ;ui(l 
such  deserters  shall  he  foriiver  incapable  of  holding  any  ollicc  of 
trust  or  ])rolit  under  the  United  States,  or  of  exercising  any  rijjht 
of  citizens  tliereof,"  ^  was  not  a  penalty  for  the  original  descrtidn 
previously  rommitted,  but  for  persistence  in  the  crime,  and  ((Hisc- 
quently  not  an  er  post  farfo  law;  and  that  the  United  States  had 
the  i)ower,  in  the  exercise  of  its  right  to  punish  the  citizen  of  ;i 
State  for  a  crime  against  the  United  States,  to  deprive  him,  liy  im- 
piisonmcnt  or  removal  from  the  State,  of  liis  ojiportunity  to  vote, 
and,  as  incidenfcil  thereto,  to  de|)rive  iiim  of  the  right  to  vote.* 
Although  Congress  has  no  further  {lowers  to  affect  tiie  right  of 


thill  (iiscriininntrd  n),'niii«t  Ignorant 
volors.wliilo  ii-i  wi'U  HH  liliw 

gnu.  •  Kx  pnr'e  Yiiibrmi^;li,  110  IT. 
8.,  (!."il.  Si'o  nlso  U.  S.  r  Kposo,  02 
C.  S.,  214,  21H. 

»  Civil  RlKhtB  CascB.  10!)  U.  S.,  3. 


«  Apt,  of  Mm-cli  23,  lKr,.5,  13  St.  nt 
L.,  p.  tno.     Son  IT.  H.  R.  H.,  §  I'.t'.lfi. 

*  Hulicrr.  Ucllly,  53  I'a.  SI.,  112; 
B.  r.  Uriwlitly's  Elpctioii  Casis,  0; 
MeCrary  on  ElootlouB  (Sd  od.),  §  87. 


,^  .V'l.]    row'Kits  oi'  (M)N(iiii;ss  ovHit  i;i(iHT  ok  fUKi'iiAci:. 


;i;]l 


s  iffiiige  within  the  States,  it  may  n\<;ful;ite  liie  exeiciso  of  t'.iit 
ri.rlit  ill  tiie  election  of  menilK'rs  of  ( 'oir^rrcss,  under  the  clansj  of 
the  ('(institution  wliich  j,'rants  the  express  power  to  regulate  tlie 
time,  pl-.ico  and  manner  of  sueli  eleetion.s;'  Tliis  will  l)e  discussed 
siilisc(iuently. 

I'lider  its  power  to  admit  States  into  the  I'nion,''  Congress  may 
refuse  to  aet  until  a  State  constitution  has  been  adopted  contain- 
ing'  provisions  as  to  the  rifjlit  of  suffrage  that  meet  its  approval. 
I'nder  color  of  this  power,  and  that  to  g'larantee  to  each  State  a 
ri'[iul)liian  form  of  goverinnent,  ('ongress  imposed  as  a  condition 
of  tiie  rehahilitation  of  the  reconstrueted  States,  that  each  of 
their  constitutions  should  be  so  amended  as  to  grant  the  right  of 
suffrage  to  all  — 

"  in;ili;  citizens  of  said  State  tweuty-oue  years  old  and  upward,  of 
wli:ilevt>r  raeo,  color  or  i)revious  condition,  wiio  liave  been  residents  of 
siiiil  State  for  one  year  previous  to  such  election,  except  sucli  as  may 
lie  (lisfraucliised  for  participation  in  rebellion  or  felony  at  conunon 
l;iw."' 

And  in  each  of  tlio  acts  readmitting  them  to  representation  Con- 
gress provided  tliat  the  State  constitution  — 

•■  sliMJl  never  bo  so  amended  or  clianged  as  to  deprive  any  citizens  of 
the  liiiteil  States  of  the  riglit  to  vote  who  are  entitled  lo  vote  by  the 
(iiiistitution  herein  recognized,  excei)t  as  a  inniishinent  for  such  crimes 
as  are  now  felonies  at  common  law,  whereof  tliey  shall  have  been  duly 
piiuvicted  under  laws  equally  applicable  to  all  the  inhabitants  of  said 
Slate;  I'rovided  that  any  alteration  of  said  constitution  prospective  in 
its  etToct  may  be  made  in  regard  to  the  time  and  place  of  residence  of 

ViltOl'S."" 

riiese  statutes  are  inoperative  upon  the  power  of  those  States 
til  amend  tlieir  constitutions  so  as  to  restrict  the  right  of  suffrage 
witiiin  the  limitations  of  the  Fifteenth  Amendment." 

Congress  has  the  absolute  power  to  regulate  and  restrict  the 
suiVrage  in  the  Territories,  and  in  the  District  of  (^)hnnliia,  al- 

'■roiistitutiou,  Article  I.  Seelion  4.  H9H  :  8.  c.   U  So.  llep.,  472:   rollanl's 

"('oiislitiitio?!,  Article  IV,  Seelion;!.  LcsKoe  r.  Iliittaii,  .'1  How., 'Jl'2,  U'J:t. '22H  ; 

'  II  Si.  at  L.,  p.  4'2'J ;  Kupra,  §  ;!S,  IVnnoli  r.  First  jriiiiiei|iiillty,  ;t  Ilow., 

over  iiole  l(i;),  581),  CIO  ;  Stniiler  r.  (irali.-iiii,  10  How.. 

"  Siiimi.  i?  37.  H2;  AVlthors  v.  Buckley,  20  How.,  84, 

'Siiroulo  V.   Frodoricks,   r,H  lllas.,  93. 


832 


Till',    lilCHT    OV    SUI'FHAGi;. 


[chap.  VI. 


tlioiiyli  it  iil)ricli,'e.s  tlie  rij^hts  of  electors  under  previous  l;i\vs;"* 
provided  that  in  so  doing  it  does  not  enact  ii  bill  of  attainder  (ir 
ail  cj'  post  f (I ft 0  law,"  or  a  discriniination  on  account  of  race,  color, 
or  [jrevioiis  condition  of  servitude.'^  In  the  exercise  of  this  power, 
Coiirrress  may  prohibit  a  polygamist  to  vote,  even  thougii  he 
does  not  actually  cohabit  with  more  than  one  wife,  if,  after  hav- 
ing previously  contracted  a  polygamous  marriage,  he  continues 
to  live  with  two  or  more  women  in  the  same  family,  treating  them 
as  his  wives  in  all  respects  except  actual  sexual  connection  ;  and 
it  may  authorize  a  territorial  h'gislature  to  disfranc^hise  from  the 
rights  to  vote  and  hold  oHice  all  persons  who  themselves  teach, 
advise,  or  encourage  polygamy,  or  are  members  of  any  oi'der  or 
association  which  gives  such  teaching,  advice,  or  encourageinent,'' 
In  this  manner  the  Constitution  has  been  circumvented. 


§  54.    Liiliitatioiis  of  the  Fcdoral  Const  if  iitioii  on  the  I'ower  of 
tlie  States  over  the  Kiju^ht  of  Siiffra;fe. 

The  only  limitations  im{)osed  by  the  Federal  Constitution  upon 
the  power  of  the  States  to  regulate  tiie  right  of  suffrage  are  the 
Fifteenth  Anu'iidnient,  the  guaranty  to  each  State  of  a  reimhlicun 
form  of  government,'  and  the  inhibitions  against  the  euactMiriit 
of  bills  of  attaindi^r  and  cr  pout  f ado  laws.'^ 

The  Fifteenth  Amendment  has  been  previoush'  considered,' 
Should  a  State  so  restrict  the  light  of  sull'rage  as  to  establish  ii 
narrow  oligarchy,  Congress  luider  its  power  to  guarantee  to  all 
the  inhabitants  of  the  State  a  republican  form  of  government  may 
perhaps  abiogati:  so  much  of  the  State  legislation  or  constitution 
as  contains  the  restriction.'' 

Some  authorities  hold  that  disfranchisement,  either  dinnitly  or 


1"  Murphy  r.  Kanisoy,  lit  U.  S,,  W, 
45;  Iiinis  r,  liultoii,  2  Idiilio  T.,  407; 
8.  0.  17  Pile.  Kci>.,  2('i4;  Woulcy  V.  Wat- 
kins,  2  Idaho  T,,  5"),"). 

n  Const!  tut  ion.  Artii-lo  I,  Scrtion '.). 

I'-i  Fifloeulli  Anii'MdniiMit, 

"  Davis  V.  licasoM,  VM  V.  S.,  3M, 
347;  but  sec  Stiilc  v.  Findlcy,  20  No- 
vuda,  1!)8;  s,  c.  H)  Vtu:  Il.-p-,  2tl; 
whenMindcrii  Stato  constKution  giv- 
ing every  male  cilizon  exuc((l  couviets 


and  pauppis  I  he  lifjlit  to  vote,  it  was 
Ill-Id  tliat  Mormons  could  not,  ho  ex- 
cluilod  by  nirans  of  a  toat-oalh  or 
otherwise, 

§  ,'')t.  1  Constitution,  Article IV, Sec- 
tion 4. 

-  II lid..  Article  I,  Section  10. 

^  Supra,  1}  !i'i. 

<  Constitution,  Article  IV,  SoctioD 
4 ;  8upra,  §  38,  and  infra. 


I"1\VI,!;S   OK  CUNCIiKSS   OVIOlt    KKIHT    OI"    SIFlMIAl    K 


liv  Uu 


iiii)i(psiti(in  of  ii  tust-oiitli,  on  accfunit  of  a  oi 


mic  sill  ii  lis 


troii<iiii.  wliieli  was  not  so  piiiii.sliablo  at  tlio  time  of  its  ci 


Slllll,   IS 


a  hill  of  attainder  or  cr  jmut  fnfto 


o   law,  iunl  consciiui'i 


^ly 


Vdiil/'  Others  Hiipport  the  position  that  llie  elective  francliisu 
is  Mill  a  i)rivilege.  hut  rather  a  iluty  imposed  for  the  henelit  of 
tlie   coinmuiiity,   not    the    voter;    that    eonseipieiitly    it    may  lie 


iilid 


rawn 


in  a  State's  discretion  for  any  i' 


'eason,  am 


1   that  such 


withdrawal  from  a  class  cannot  he  c;onsidered  as  in  the  nature  of  a 
punislmient."  'I'he  suhjec^t  became  of  impoi'tance  at  tlie  clnsc  of 
ihc  Civil  War,  wlnn  some  of  the  loyal  States,  as  well  as  tiinse 
wliirh  had  seceded,  imj)osed  test-oaths  of  past  loyalty  deu<;'iied  to 
withdraw  the  right  of  sutTratre  from  tiiose  wdio  had  sympatlii/.ed 
with  the  Confederacy.      ('on<,'rcss  im])osed  similar  disahilitics  i;i 

d    a   few  words  in  the    Foisr- 
lififht   color   to   tlu^    contention 


striiction  IcLrislation 


Its  K( 

teoiith    Amendment 

(iiiit  the  validitv  of  such  disfran(diisemcnt 


Ljave    some    s 


v,as  tJicrcin  rt'coijfuized.'* 


till 


le  oiimion   o 


f  th 


le  writer,  those  who  coiitcud  that  such  a  dis 


fniiHJiisement  is  miconslitntional  have  the  better  of  the  ar'niment. 


Duriiii,'  recent    years    the    question    has   been 


coiisKlei'eii   in 


th 


legislation  aj^'ainst  the  .Mormons;  but  the  constitutional  objections 
were  obviated  by  disfranidiisemen.'^  for  mend)ei-diip  in  an  association 
ntinued  to  tt^ach  the  moraliu  of  polvL^'iimy"  and  fiw  con- 


Wliirli  CO 


tiMiiiiiLr  to  treat  as  a  menu)er  o 


)f  tl 


le  voter 


i'aiiiil-, 


a  polvi^'amous 


wife.  altJioucrli  scxual   ndations   with   her  had   been  abamloned.'" 
ill  New  ^'ork   the  reciuiremeiit   from  a  voter  of  an  oath   that  he 


lis  nut  previously  conim 


litted 


a  crime,  has  been  attached  as  an  in 


Iriiiiicmeiit  of  the 


provision  o 


f  the  State  ( 'oiisiituiion,  which  or- 


liaiiis  that  '•  no    member  of  this    State   siiall    be   disfranciiised,  or 


^Si'i'  tlio  opinion  of  Miller,  J.,  In 
Givni  r.  Sliiimway,  111)  N.  Y..41S,  426; 
iiihl  tli(!  ;'HRc>a  i-i1i'd  iiifr:i,  nolo  12. 

Si'i' iil^o  K-cjific/e  Giirliinil,  1  Wiill., 
■W'l;  I'linuiiing^^  v.  Jrissomi,  4  Willi., 
-"  ;  mtpni.  ij  .I.!,  and  infra  miilci'  Hills 
"f  AlliiiiiiliM'  ami  Ex  pusl,  Fiiclo  Laws. 

'' .Viiilcrson  r.  Baki'i',  2:1  Md.,  Ml; 
Itlujr  r.  UiKlcy,  41  Mo.,  ('ill;  Slate  v. 
Ncal,  42  Mo.,  119;  Randolph  r.  (iood, 
3  West  Va..  .I.")!;  Uurch  v.  Van  Iforu, 
3  Bart.  Elootiou  Caseb,  405 ;  luuis  v. 


Kolloii,  2  Iilalio  T.,  407;  Wool. 
Watkins,  2  Idalio  T.,  S.to.  Seo 
Stiitc  V.  WooUon.41  Mo..  227. 

'  Siipyii,  ji  :w. 

«  "When  the    rij;ht  lo  vel.-  . 
depriveil  .  .  .  or  in  any  way  iihri 
f.rccpt  ftir   I'drt  riiHttinii    in   ri'Itrtlin 
ulhcr  rriinr." 

9  Davis  r.    li.'a-oii.    l:ri    I'.   S., 
a47. 

1"  .Murphy  v.  Itamsoy,  114  U.  S. 
45. 


y   1'. 
also 


.     IS 

l!,-ed 
nr 


3:;  4 


Till';  iiKiiiT  OK  si-n'i;.\(ii:. 


[•'IIAl'.  VI. 


(lipiivod  (if  any  nf  tin:  rii^'lils  or  privilc^'cs  sih'UIciI  to  any  citi/.ciis 
tlioreof,  iinU'Hs  l)y  tin-  law  of  tin;  land,  or  the  jiulgniuiit  of  his 
pi'CM'S."  "  111  lliat  and  oilier  States  such  test-oaths  haveheeii  lirld 
invalid  as  addiii;^  to  tiie  ([iialiliealions  for  votini^  preseiihed  hy 
their  respective  eoiistitutionsJ'-' 

I'rovided  that  no  (liscriiuination  is  made  on  aceonnt  of  race, 
color,  or  previous  condition  of  servitude,'''  the  rij^lit  of  sufl'ragc  is 
exclusively  within  the  control  of  the  individual  States,  and  may 
be  extended  or  abridpred  b}'  any  one  of  tlieiu  to  any  extent  not 
prohibited  by  the  terms  of  its  own  constitution,  without  any  in- 
fringement of  the  ("onstituiion  of  the  United  States,  iiiilos  the 
abridjifment  is  so  made  as  to  constitute  a  bill  of  attainder,  or  </ 
])()Kt  facto  law,  or  to  make  the  goviM'iiineiit  no  lontjer  republican 
in  form."  The  ri^lit  of  siilfrajrii  is  not  conferred  by  the  Initcd 
States  except  in  those  eases  where  a  discriiiiinatioii  by  reason  of 
race,  color,  or  previous  condition  of  ser\itude  was  abolisiied  liy 
the  I'ifteenth  Aniendnieiit.''''  The  riglitof  siifTra)re  is  not  a  privi- 
lege or  immunity  f)f  a  citizen  of  the  United  States,  which  is 
]>roteeted  by  the  Fourteenth  Amendment;"'  and  a  State  legisla- 
ture, unless  prohibited  by  the  State  eonstitution,  can  eoiisc(piciitly 
deny  tlu  ':;:''lit  of  sidtrage  to  minors,  lunatics,'"  pau[)ers,"*  woiiicii."' 
persons  not  possessing  a  cjertain  property  or  ednealioiial  (piulilica- 
tioii,  or  non-taxpayeis.-"  Constitutional  and  statutory  provisions 
for  the  exclusion  from  the  right  of  surtVage  of  persons  who  have 
been  guilty  of  specilied  crimes,  have  been  so  construed  as  to  re- 


"  Given  r.  Sliiinnvay,  :i'.)  N.  Y.,41H, 
4'2(i.     Si'n  also  tlii>  (•itatiiiiiH  in  iiulc  lU. 

1-  Gi-ciMi  I'.  Shiiiiiway, ;!'.»  N.  Y.,  •118; 
llisoii  r.  Fair,  24  Arkansas,  Kil;  Da- 
vics  r.  lIcKcMkcy,  ,'>  NcvH<la,  3(!H ; 
Slulo  i\  Finillay,  'iU  Novailii.  l',)H.  But 
SCO  KaiRlolpli  r.  (ioml,  ;t  W.  Va.,  551. 

I'l  Sim-  Fifleontli  Aiui'iidniont. 

'«  Sliiior  1'.  Huppcrsolt,  21  Wall., 
162. 

'^  Minor  v.  Hapiicrsott,  21  Wall., 
I(i2,  170;  li.  S.  r.  Uces,  >,;2  V.  S.,  211; 
Hot  Ki'i'  Kx  parte  Yarbroiij^li,  110  U.S., 
651,  (ir,  I -(iC,-). 

Ill  Minor  v.  Happcrsott,  21  Wall., 
1C2. 


'"  Tliompson  v.  KwiM;^,  1  lircwsli-r 
(I'a.  1,  (!8,  (i'.»;  Clark  v.  Kdljiiison,  M 
IlliiKiis,  -tHH ;  McCrary  on  Klcctioiis 
(llil  iMl.i,  §  so. 

'"  Opinions  of  Justiors,  12 1  Mas*-;,, 
I'M). 

'»  Minor  V.  Ilappcrsclt,  21  Wall., 
102;  Van  Valk('nl)UiK  v.  Urcnvii,  'i:l 
Calirornia,  43;  Kolirliarlicr  r.  Mayor 
of  Jackson,  51  Miss.,  T.\'>;  Sponcrr  v. 
Hoard  of  Uo^-islration,  1  MaiArlliur 
^I).  v.),  Kil);  UlooiiuM-r.  Toilil,  Wasli- 
iiiKlon  T(;rrit(iiy,  19  Pai-.  K''p.,  I'liJ; 
Ojinioiis  of  Justices,  C>2  Maine,  5!){>. 

■i"  B^clcner  v.  Gordon,  HI  Ky.,  GG5. 


J."t4.j    I'OWKIIS  OF  C'ONOKESS  OVEIl  UUJHT  ill''  ST KI'liAdK. 


nss 


(juiie  a  conviction  of  such  crime  in  a  coiiit  of  justice  iKifurc  tlie 
(lisiiualillciition  becomes  operative,  ami  not  to  allow  the  rejection 
liy  tlie  election  oHicer  of  a  vote  upon  such  a  ground  before  con- 
viction.-' An  express  provision  givinjj  to  the  election  ollicers 
siuii  riifht  of  exclusion  before  conviction  would  lie  of  very  doubt- 
ful constitutionality,  inasmuch  iis  it  niigiit  be  claimed  to  amount 
t(i  tiic  ini[)osition  of  a  penalty  or  infliction  of  a  punishment  with- 
imt  due  process  of  law.''^  Wiiere  the  State  constitution  autiiori/es 
the  Icifishiture  to  exclude  from  the  right  of  suffrage  peraons  con- 
victed of  iid'amous  crimes,  the  legislature  cannot  enact  a  disijuali- 
lication  for  conviction  of  a  crime  such  as  du(dliiig,  wliicii  is  not 
infamous.^  In  tlie  absence  of  express  language  a  constitutional^* 
or  statutory  ^  disqualilication  by  a  State  for  the  conviction  of  a 
felony  or  infamous  crime  does  not  apply  to  the  conviction  of  a 
mere  statutory  offense  against  the  United  States.  Where  a  State 
constitution  jirovided  that  an  elector  sliould  forfeit  his  right  of 
siitTiag(^  by  "a  conviction  of  any  crime  which  is  punishable  by 
iiuprisomnent  in  the  penitentiary,"  it  was  held  that  a  person  who 
liail  been  convicted  of  a  crime  punishable  by  fine  or  such  impris- 
iiiuiiciit,  but  who  had  been  piniished  by  a  mere  line,  did  not  forfeit 
his  franchise.^  A  pardon,  when  not  limited,  restores  the  I'ight  of 
.suffrage  which  has  been  lost  by  the  commission  of  a  disqualifying 
criiuc, 


,„i!r 


->  Huhor  )'.  Roilly,  m  Pa.  St.,  112; 
s.  c.  ]!iif,'laly's  Electiim  Cu.sos,  69; 
Slab' I'.  SyiiiDiiils,  57  Maiiio  148;  C<im- 
iiidiiwfaltli  r.  .loui'S,  10  Bii^h  (Ky.\ 
Tia;  H.  ('.  14  Aiiiericau  Law  Kej;ist.or, 
N.S.,  .174  ;  SCO  also  Bui'kett  v.  lli'Carly, 
10  Bush  (Ky.),  7.')8  ;  MeCrary  on  Eleo- 
tiuus  (3(1  oil.),  §§  «7,  88,  80,  3l)i),  .'ilO. 

•"Iliilicr  t'.  UoiUy,  53  I'a.  Si.,  112; 
Stuto  V.  Syiiionils,  57  Maiiio,  148  ;  Coiii- 
mniiwi'allh  r.  Jones,  10  Uiish  (Ky.  i, 
72.');  s.  (;.  14  Aniorican  Law  RoHlatPr, 
N.  S.,  374.  Scoalso  Biiikctt  i'.  McCarty, 
10  Bu.sli  (Ky. ),  758;  JlcCniry  on  Elec- 
tioub  (3d  fd.),  §§  87,  88,  bU,  'aUU,  31U. 


2"  Barker  r.  People,  20  .lohnnon 
(N.  Y.),  457  ;  MoCniry  on  Elections  (3d 
e(l.\  §84. 

2*  flaiuly  V.  Slate,  10  Neb.,  243. 

-''  Tnilid  States  v.  Barnabo,  14 
Blatchfonl,  74. 

••'•i  Gaudy  v.  State,  10  N'l'braska,  243  ; 
People  II.  Cornell,  1(!  California,  187 ; 
ro7if»'(i,  l'.  S.  D.  Watkins,  7  Sawyer,  85. 
See  McCrary  on  Elections  (3d  ed.), 
§  S5. 

2'  Wood  V.  Fitzgerald,  3  Oregon, 
50!);  ^x  i>ar(e  Garland,  4  Wall.,  333; 
infra. 


336 


THK    KKillT   UK    SUFFRAGE. 


[CIIAP.  VI. 


ji$  55.   U8III1I  ProviMloiis  of  State  CniiMtitiitloiis  na  to  tlio  KIkIU 

ol'    S^lt'^■|■ll}?l^ 

Altliougli  llic  jiowcr  of  11  Stato  itvor  tlm  rij^lit  of  suffracrc  williiu 
its  jurisdiction  is  vciv  liioiid.  tiiat  of  iv  State  Icf^islaturo  is  not. 
All  tlic  Stiitt)  coiistiliitioiis  conlaiii  provisions  wliicii  I'stalilish  lim 
qualiilcations  of  voters  ami  rostrictions  upon  tin;  ri^ht  of  siitTiiif,'L', 
lu  the  alvionee  of  laiij,'iiaj^e  wliicli  ffraiit.s  tlie  power,  citiicr  I'x- 
pressly  or  liv  clfur  implication,  ncitlifr  the  State  lejrislatur('  nor 
any  lioanl  of  local  government  can  add  to  the  (lualificaticiis  of 
voters  at  till'  election  of  a  State  ollicer,  or  memhcr  of  tin;  legisla- 
ture, or  any  otlu.'r  election  wliicli  ail'ects  tlio  State  at  large.'  The 
lietter  o[iiniou  would  seem  to  hu  tliat  in  such  a  case  they  have  iii) 
I)ower  to  add  to  the  constitutional  {lualilieations  of  voters  at  elec- 
tions which  are  pundy  local,  such  as  the  choice  of  a  coiinty-seiit;^ 
but  exjjres.s  power  upon  the  subject  of  local  elections  is  conferred 
liy  a  few  State  constitutions,  and  less  explicit  language  niielit  lie 
re(iuir(Ml  to  grant  such  authority  over  them  than  ov(!r  general 
elections.  It  h;is  been  held  in  ICentucky  that  tin;  Icgislatnre 
may  restrict  to  tax-payers  the  right  to  voti;  for  municipal  ollieers.'' 
Inasmuch  as  the  Coustitntion  directs  that  the  State  legislntin'es 
shall  pri'sci'ibe  the  (imc.  place  and  manner  of  the  idcctiou  of  \v[>- 
nscntativcs  in  Congress,  subject  to  alteration  by  ( 'ongress,''  and 
shall  (linnet  th(!  manner  of  electing  presidential  electors.'^  it  was 
the  opinion  of  the  Supremo  Courts  of  two  dift'erent  States  that  the 
jiiiivisions  of  their  constitutions  whicdi  re(piirc(l  votei's  to  cast  their 


§  55.  '  Uisoii  V.  Fiirr,  21  Ark.,  Kil : 
Stiite  cr  rel.  Kiiowllim  i'.  Willinms,  5 
Wis.,  ;!()8  ;  State  v.  Hakor,  ;1H  AVis.,  71 ; 
Monroo  r.  Collins,  17  Ohio  St.,  6(!5 ; 
Stato  r.  SyiiKiiiilH,  57  Mo.,  14S ;  Stato 
V.  Stateii,  li  Colli.  (Toiin.),  23:t;  Davio.s 
r.  MeKeoliy,  5  Nov.,  .Sf!!! ;  Clayton  r. 
Harris,  7 Nov., fit ;  MeCalT(>rty  r.  (tiiyor, 
5'.t  l>a.  St.,  10!);  Huber  r.  Kciily,  5;) 
Pa.  St.,  112;  Qaiiiii  v.  State,  ;i5  Imi., 
4H5;  Kanddlpli  r.  Good,  11  W.  Va., 
651 ;  GrooM  v.  Slnunway,  H!)  \.  Y.,  418  ; 
Qiiinii  r.  Stale,  lia  Ind.,  4K5  ;  IVople  r. 
Canaday,  73  N.C.,  IDS  ;  Stato  v.  Tuttlo, 
53  Wis.,  45.     Cooloy's  Constitutional 


Limitationw,  (itli  od.,  pp.  79,  753; 
McCrary  011  Eioctlons,  3d  ed.,  {)§  14-18. 

••"Stato  r.  AViliianis,  5  AVis.,  ;il)H; 
State  V.  Loan,  9  Wis.,  279;  Collin  r. 
Hoard  of  Eleelion  Coniniissionoin  of 
Petioit,  97  Jlich.,  ISS;  s.  c.  iiG  K,  W. 
Kep-,  5i;7. 

■'  Bucknor  r.  (lordnn,  SI  Ky.,  I'lUn. 
Seo  Slato  ;•  Dillon,  32  Florida,  515; 
s.  c.  14  Sontliern  Hop.,  383;  llayoref 
Town  of  Valvordo  r.  Slifittnok,  Celd- 
rado,  34  I'ae.  Hop.,  947  ;  cmitra,  IVoplc 
V.  Canaday,  73  N.  C,  198. 

♦  Const  itntion,  .Vrticle  I,  Sootion  4. 

<•  Ibid.,  Article  II,  Soelion  1. 


•J 


STATK   r-ONSTlTfTlDNAr,    PlioVISIONS. 


lUots  in  the  loi'ivlitii'S  \vl\ere  thuy  rcsitltid,  (Miiild  not  in'cvcnt  \\n'. 
•i,'isl;Uui'e.s  from  piissiiifr  l:i\vs  wliicli  allowccl  soldiers  in  iielivc 
Tviif  to  voti!  in  tiii'ir  ciinip-i  at  tiie  seat  of  war  witliout  (he  State." 
1   constitutioiiul   provisions   in  several   States  antliorize  sni- 


Sprciid 


uis  liiiis  til  V(jte  m  tniie  or  war 


Tlie  Slate  ieffisiatnres  cannot,  however,  grant  tiie  ri;,'-!)!.  to  vote 
;i  Congressional  election  to  any  exeept  the  electors  of  the  most 
iMUTons  hnmeh  of  the  State  legislatnre,  or  take  from  any  of 
ill  electors  the  right  to  vote  for  nienihins  of  the  national  lions- 


ji'csentativea.' 


Tlr 


powe 


r  to   resjnlate   the   manner  of  an 


cK'ctiou  does  not  inelii(h,'  the  power  to  impose  (]Ualilications   npi 


VI Iters  ( 


lifferent  from  those  contained  in  a  Stale  Constitntion.' 


I'hr  State  constitutions  n^iiially  grant  the  right  to  vote  to  all 
il  ■  cili/ens  of  the  I'niti'd  States,  and  lesidcnts  of  the  State,  wiio 


aiv  (it  sou 


nd 


d,  hi 


it  been  convicted   of  certain  s 


pecilii 


iriiiii's,  and  are  not  inmates  of  poorhonses  or  similar  asyiuiiis. 
Tu.i  Stales  —  Colorado  and  Wyoming  —  allow  female  siitt'iagi' 
lections;  '"  Montana  npon  all  (jnestions  suhnuited  to  tix- 
Kansas  at  nmnieijial   elections  ;  the   last  and  a    niimher 


at  all 
]i.l\rl> 

of  iitlurs  at    school   elections.     Whei 


till 


State    constitntion 


is  .siliiit  upon  the  siilijcet,  the  legislature  has  tlu^  ]iower  to 
witliliiiid  the  right  of  snlTrage  from  women,"  or  to  confer  it 
iilmii  them,  either  wholly  or  in  part:  as.  for  exauijilc.  in  local 
scliiinl  elections,  which  aic  sometimes  held  to  lie  impliedly  e\- 
wiitiil  from  the  constitutional  provisions  as  to  the  (jualilicatiiins 
(if  voters.'^     Where  female  suffrage  was  authorized,  it  was  held 


"  Opiiiion.s  <if  .Justices,  -ir)  N.  H., 
Sil'i;  li|iiiiioiisot  JikIkcs,  37  Vt.,  Gfi.5. 

'Coiilcy,  Cimstimtidiiiil  liiiuitii- 
tiiiiis,  dill  oi].,  p.  7.")!.  Soldit'i-s  iiiiiy 
H)  vole  ill  Ohiii.  i' '•'..,  (•itiiifj  Lolinian 
<■•  ■*'.  ;>ii.lc,  1.-)  Ohio  (N.  S.),  .'■i7;!.  Tlio 
stiituli's  luitlioiiziiix  thfia  so  tu  vole 
wcri'  liclil  inviiliil  uinlcr  *'i(>  f(,i-iiit>r 
iou.sliliaii,ns  (jf  CaMfdi'iiiii  ami  lliclii- 
g:iu.  Day  v.  Joiios,  yi  Cal.,  '2(11 ; 
TwiUihill  f.  UloilKotl,  l;i  Mi.h.,  127. 

*Oinsliiiiii(in,  Artlclo  I,  Scclioii  2. 

'■'Collin  f.  ]jo;ir(l  (if  Kk'ctioiis  C'oni- 
uiissiouers  of  Detroit,  07  Mich.,  1H8. 


'o  Tlio  proposed  conslitutioii  of 
Utah  (loos  llid  saiiic.  Sec  also  tli(! 
('(institution  of  North  Dakota.  §  12'2. 

11  Miiiorf.Hupp(TS(>tt.  21  Wall..  1(12. 

"  Wh(>ckM-r.  liraily,  ir,  Kaii.sas.  2(;; 
Brown  1'.  Phillips,  71  WLs.,  2'M);  Slad' 
V.  Cones,  l.l  Neb.,  4-44:  Hcllcs  r.  15iir, 
7fi  Midi.,  1;  Slate  v.  Cr.isl.y,  l.->  Nel,,, 
144;  (Ipiiiioii  of  thejuilf,'es,  ll.">  Mass., 
(W2.  Bill  sec  Comn  r.  Boanl  of  F.lec- 
lioii  Coninussioners,  07  Mich..  IHS; 
Matlerof  r.a«.>.  141  N.  Y..112;  Winaus 
V.  WilUniiis,  5  Kansas,  2'27. 


MR 


Tin;  iMiiiiT  iiK  SI  I'FUAdi;. 


[CIIAI'.  Vl. 


tliat  tliii  riglit  (if  woiiu'ii  lo  vi>tt>  must  (Icpt'iid  u|)()ii  tlicHiinic  tcmis 
iiml  C'diiilitioiis  its  ii|i|ili('<l  to  iiK'M,  and  thai  tlicn  I'lii'i'  a  roiiiiitldii 
tliiit  all  mall!  voti'M  sliould  Ir'  tax-iiaycrs  ^^■a.s  void  lu'caiHt;  it  liiil 
not  a[i]ily  tn  fcmali!  votuis.''*  I'lidcr  tliu  Calil'iiriiia  Coiistit  1'  ii, 
wliirli  providiMl  tliat  "iio  juTson  sliall  on  account  of  sex  li  ■  iljs- 
(jiialilied  from  entering  upon  or  pursuin<,'  any  lawful  ImsiiiKss, 
vocalion  or  profession,"  it  was  ludd  tliat  a  lioard  of  supcrvisow 
could  not  jiroliiliit  tlic  eniployniL'Ut  of  women  in  drinkinj,'  ccll.iis 
and  other  places  where  li(piors  were  kept  for  sale,"  hut  that  a 
higlier  license  might  Iw  charged  for  drinking-phices  where  woinoii 
were  emiiloyeil."'  In  the  ah-icncc  of  a  State  constitutioiiai  pKi- 
hihilion.  women  may  ho  excluded  from  admission  to  the  har.''' 

I'\)Ui'  Slates  —  Coiuieeticut,  Maine,  Massachusetts  and  Mi-  is- 
sippi  —  impose  an  educational  (|ualilication,  which  usuall\  'insi.ts 
in  capacity  to  read  the  Constitution  of  the  L'nited  Suites  in  diu 
I'jiglisli  language.'" 

A  few  States  conline  the  right  of  suffrage  to  tax-payers,  with 
certain  exceptions.  In  Texas,  "in  all  elections  to  determine  ex- 
penditures of  money  or  assumption  of  deht,  only  liiose  sliall  iw 
qualified  lo  vote  who  pay  taxes  on  properly  in  said  city  or  iiirnr- 
j)orati!d  town."  '"  And  in  Hhode  Island,  at  elections  til  ihe 
Providence  taty  councils  and  for  the  ex|icn(liture  of  money  in  :v 
town  or  city,  only  those  can  vote  who  have  paid  a  tax  assessed 
upon  property  therein  valued  at  at  least  one  hundred  and  thirty- 
four  dollars.'"  Theie  are  lU)  other  property  qualilicalions  hir  llio 
right  of  suffrage  in  the  United  Slates. 

A  larg(!  niunlier  of  the  Stales  allow  aliens  to  vote  for  niemhcrs  of 
Congress  and  presidenliiil  electors  as  well  as  State  ollicers,  as 
soon  as  they  have  <lec;lared  their  intention  to  hecome  citi/.'ii-i.  al- 
though they  have  not  been   naturalized.     This  was  a  practice  nf 


I'  Lyiiiiin  V.  Miirliii,  2  VAnh,  13(1. 

'1  llaUcr  iif  Ma^'iiiro,  57  Cal.,  004. 

^■' Kx  p'lrtv  iM^lchin,  Ut!  (ill.,  :ii',0 ; 
H.  c.  ;u  Pac.  n>'i>.,  221. 

'»  BradwcU  ti.  The  Slate,  10  Wall., 
i;)0. 

'"  111  MisslsBippl  the  dlroctloii  is 
that,  tlm  voter  must  lie  alilo  eilhiT  to 
rcail  (ir  to  iimli'i>tiiii(l  llio  part  of  the 
Constitution  eIiuwu  <ii'   rcail   to  him. 


anil  thus  Iho  olection  ollicers  iiin  iilile 
til  allow  llllloruto  whites  to  voliMvliilo 
ilisfniucliiKliig  illitonite  Macks.  Tli" 
South  ('aidliiia  Convention  is  ii"W 
lOiiKiilerinH  the  propriety  of  ailoi'liiiK 
11  similar  provision. 

'» Te.\;is  Coiislllullon,  Art.  VI,  Sw.  3. 

'•J  Ilhoilo  Islmid  CouatltutUm,  Art. 
VII,  See.  2. 


^ .').'..] 


STATK   «'()NSTrn"nn\.\L    I'IMiVISIONS. 


880 


«liiili  Soutli  Ciirolina  coinpliuncd  in  \w.r  (li'clariilion  of  in(le|itii- 
ikiid','-'"  1111(1  wliicli  WHS  forliiddi'ii  hy  llie  ( 'uiitVdt'i'iiti!  C'oiiHtitiition.-' 

Wlu'i'i!  tlie  coiistitiilioii  simi)ly  rc:<|iiiii'd  tliiit  ii  jhmsom  sliould 
\i\\r  :i  ri'sidi'iu'c  ill  tiie  locality  wlicro  lit)  oft'iucd  to  votts,  without 
nn-'ii'iliiiit,'  any  jiuriod  of  icsidenci-,  it  was  liuld  that  a  statute 
wliitli  ni([uiri,'d  a  rcHiilence  in  such  a  locality  for  twenty  days  pre- 
vious to  the  eleotioii  was  void.^  Where  tht;  Pennsylvania  Con- 
stitution piovided  that  a  voter  must  have  resided  in  his  election 
(lisiiict  "ten  d:iys  iininediately  preceding  the  election,"  it  was 
liild  thiit  (111  act  was  voiil  wliich  atteiuiited  to  authorize  a  voter  who 
hiul  I  liiintTL'd  his  residence  within  ten  days  of  the  election  to  vole 
wlieiu  lie  formerly  ixtsidiid.-'' 

It  lias  liceii  said  that  persons  of  unsound  mind  are  impliedly 
cxcciitcd  from  the  chuss  of  electors  specified  in  a  constitution  or 
st;itiile.  although  not  expressly  nauicd.^*  Drunkenness  is  con- 
sidi'ied  as  a  temporary  insanity.'^'' 

'I  lie  crimes,  a  conviction  of  which  ojierates  us  a  disfranchisement, 
arc  iisiiiilly  all  or  a  specilied  class  of  infamous  crimes;  ordimirily 
iiii  Imle  treason  mid  often  diielliiifj  and  hriliery. 

Most  State  coiislitutiiiMs  contain  a  jirovision  concerning  the 
ivsiilciice  of  voters  in  siihslance  like  l!i:it  of  New  York  :  — 

'•  For  I  lie  purpose  of  voting,  no  person  shall  he  (toeined  to  liuve  gained 
or  lost  a  resilience,  hy  reason  of  his  presence  or  ahsence,  wiiile  pin- 
IiIdviiI  ill  the  service  of  the  I'nited  States;  nor  while  ciigiiged  in  the 
iiaviiratioii  of  the  waters  of  this  State,  or  of  the  I'liited  States,  or  of  the 
lii^ii  seas;  nor  while  a  stiiilenl  of  any  seininaiy  of  learning;  nor  wliile 
kept  at  any  almshouse,  or  other  nsyliiin,  wholly  or  partly  supported  at 
]iiilili('  expense,  or  hy  charity;  nor  w'lile  eontinod  in  any  pnlilie 
lirisiiii."-" 

I  iiiler  siinihir  provisions  it  has  heeii  held  in  sonii!  Stiites  that 
where  the  pei'sons  tlieiciu  descrilied  showeil  that  they  had  actually 
iir(|iiiicd  a  [lernianent  residence  at  their  ollicial  posi,''^  or  place  of 


-'  Siijim,  ij  ;!(!. 

■'  Siiimi,  §  ;t7. 

'■'-'tjiiiim  V.  State,  3,".  Iml.,  IHn. 

'■' TiKiiiipsou  V.  Kwint;,  1  ]iri«wslor 
(Pa.,.(;7,  io;i. 

='  Sra  Clarli  r.  Kniiinson,  S8  111., 
'J**;  Ciislilng,   Law  and   IVactico  of 


Le^jisliilivii  AsBciiiblios,  §§  21,  '27; 
Cooloy,  Constitutional  LiiiiitatioiiS,. 
nth  ed.,  II.  7r.;i. 

■•:•'  Il.i.l. 

■-'■'  X.  Y.  Constitution,  Article  U, 
Suction  ;i. 

'^  I'uoplo  tr  rel.  Orraan  r.  Elley,  '>! 


340 


THK    KKillT    OF    Sri'KllA(;K. 


[cHAi-.  vr. 


education,^  or  asyluin,29  they  might  voto  there.      The  New  York 
courts  construe  the  provision  more  strictly  against  tlie  voter.*' 

§  50.  Constitutionality  <>f  IJoK-istration  Laws. 

Although  a  Stat(!  legislature  cannot  add  to  tin;  constitutional 
qualifications  of  electors,  it  may  estahlish  such  reasonable  n^gulii- 
tioiis  for  the  conduct  of  tiie  elections  and  for  the  determination  of 
the  right  to  vote  at  tlie  same  iis  do  not  impair  the  constilutional 
right  of  sutTrage.'  It  is  the  better  opinion  that  wlieie  tiie  con- 
stitution is  silent  upon  the  subject,  a  State  legishituri;  has  still  tiie 
power  to  make  a  reasonable  law  compelling  the  registration  of 
all  voters  before  an  election.^  A  few  State  courts,  however,  have 
held  registration  laws  unconstitutional  unless  expressly  auihorized.^ 
In  consequence,  express  provisions  authoriznig  registration  laws 
are  now  usually  inserted  in  the  modern  State  constitutions.* 

Registration  laws,  and  all  other  laws  providing  for  tin;  coiuluet 
of  elections,  must  not  unreasonably  r^  strict  the  right  of  (pialilied 


Cal.,  48 ;  Pcoplo  cr  rel.  Hiiild  t'.  Holdon, 
28  Cnl.,  Tilt;  Wood  v.  FitZK'cnild,  3 
Oregon,  5('iM;  DarriiHli  v.  liird,  H  Oro- 
gon,  2'2!) ;  Hunt  r,  llichards,  4  Kansas, 
549. 

"'  Putnniii  r.  .Johnson,  10  Mass.. 
;d8;  Opinion  of  JukUcos,  5  SInt. 
(MuKS.  1,  .587;  Sandi'i-s  V.  Gi .,  I'oU,  7(i 
Mo.,  1,')8 ;  I'l'ilino  V.  (Jrinios,  11:1  Ind., 
118;  licrrv  I'.  \Vilio.\,  N('l)riiKka,  (!2 
N.  W.  Kop.,  249. 

"Stewart  v.  Kymn-  (Cai.forula),  30 
Pac.  lli>p..  I'.t. 

■wsilvcy    r.    Lindsay,    107   N.   Y., 

HG;   P.'oplf  r.  Cady,   143   N.  Y.,  100; 

te  (liKidniaii,  84  Hun.,  53;  s.  c.  14(i 

N.  y..  2.".(l,     li,'  (iai'voy,  84  Hun.,  611. 

§  .')G.  '  Coolcy's Constitutional  Llml- 
lation.".  Citli  I'd.,  pp.  7.")(i  7(10;  MiCiiiiy 
oil  Klcctioiis,  3il  (v|.,  §  1)1. 

M'apcn  I'.  PostiT,  12  Piik.  (Mas.s.), 
485;  H.  c.  23  Alii-riiMin  Decisions,  032; 
IJavlst'.  8.1io(d  Disirh'l,  4.'i  N.  H.,  ;t!)8; 
I'ooplo  1'.  Koppli'Uoni,  to  XIIcli.,  342; 
Slalov.  Uond,  ;!•<  llo.,  42ri ;  Enswortli 
r.   Albin,  Hi   Mo.,  450;    btati;   v.    Hil- 


niantcl,  21  Wis.,  .')(;(';  State  ..  liiiki>r, 
38  Wi.'^-..,  71 ;  Bylor  v.  Ash.-i-,  47  111., 
101;  Pooplo  t).  Hoffman,  11(1  111.,  587; 
Mouroo  f.  Collins,  17  Ohio  Si.,  (')(i5; 
Edmonds  v.  Banliury,  28  Towa,  207. 
Si'i)  also  In  re  VoUiiiK  L'sU.,  13  K.  I., 
721);  StatcM'.  liutts,  31  Kan.,  .'■)37  ;  Itaw- 
liins  V.  Carroll  Co.,  50  Miss.,  7:io; 
McMalion  r.  Mayor,  I'.Ci  Ga.,  21". 
Paltoi'son  1'.  Harlow,  CO  Pa.  SI.,  .'it; 
Coinmonwi'altli  r.  Mi'Ch'Uiind,  83  Ky,. 
()8(1.  Cooli-y's  Const  11  utional  Tjiiiiita- 
tions,  Glh  ed.,  p.  757,  and  McCr.iry  nii 
Elections,  3d  cd.,  §  1)2.  An  excoll.Mil 
note  on  this  subject  in  21)  Am.  Iji» 
Rep.,  N.  S.,  872. 

3  Dell  r.  Kenn(Mly  • !)  Wis.,  .W);  s 
('.  35  Am.  Hop-.  ''SO;  .Vliito  r.  County 
of  MuUnoiuah,  13  Oregon,  317.  Siv 
DaitKctt  V.  Hudson,  43  Ohio  St.,  ."ilH; 
State  «.  Corner,  22  Neb.,  2i;."i ;  I'l*' 
r.  Allen,  .ns  Pa.  St.,  338;  Coeieys 
Conslltutionai  Llniilallons,  titli  I'd., 
7,57. 

*  The  Constitutions  of  Arknn8ii> 
(Art .  HI,  Sec.  2)  and  of  West  Vii'KlDiii 


..;.] 


REOISTKATION    LAWS. 


341 


ch'ctor.s  to  vote.^  TliO  only  lawfiu  ol)ject  of  a  registration  law  is 
ilic  pruvuntion  of  frauds  at  an  eloct  on.  ('onsL'ijuuntly,  wlien  onu 
i.s  so  drawn  as  to  praclieally  disqna  ifv  a  class  of  cilizcns  ;uid  resi- 
(li'iit^  of  tlie  State,  autlioiized  by  tiie  constitiifion  to  vote,  wlio 
tlii(iUL;li  their  want  of  permanent  homes  or  migrator}- liabitfulo  not 
remain  in  any  loealitj'  a  long  period  of  time,  it  is  void.^ 

It  lias  been  held  that  a  law  wliieh  closes  the  registration  Uiree 
weeks  l)efore  the  election,  and  allows  no  one  not  then  registered 
to  vote,  is  reasonable  and  constitutional.'^ 

An  act  \^ Inch  provided  that  "  no  person  hereafter  naturalized 
in  any  court  shall  be  entitled  to  be  registered  as  a  voter  within 
tliirly  days  of  such  naturalization,"  was  held  unconstitutional,  as 
iiniiDsing  a  new  (lualification  upon  voters  not  autlioi'ized  by  the 
State  c:onbtitution.'  Where  the  Illinois  Constitution  provided 
that  "all  elections  shall  be  f:  3  and  ecjual,"  it  was  held  that  this 
did  not  require  a  luiiformity  of  regulation  in  regard  to  elections 
in  all  portions  of  the  State  ;  and  that  a  registration  law  which 
operated  only  in  such  cities,  villages  and  (owns  as  adopted  it  was 
not  a  local  or  a  special  law.®     Hut  in  Indiana  it  was  lield,  that  the 


(Art.  VI,  Sec.  43)  expressly  forbid  a 
ii'^'isirutiou  liiw.  That  of  Missouri 
(Art.  V,  Sec.  5)  only  iiulliorlzes  them 
III  cillcs  and  counties  with  a  iiopu- 
liitioii  of  over  KIO.OOO;  and  in  cities 
witli  a  |io)Hdation  of  over  25,000. 

"  ('Mjien  f.  rosier,  12  Pick.  (Mass.), 
Wr.  s.  c.  liiifilitly's  Election  Cases, 
51;  s.  c.  23  Am.  Decisions,  (!32;  Daj;- 
(,"'lt  V.  Hudson,  43  Ohio  St.,  548  ;  Slate 
r.  Corner,  22  Nc  .,  2li>") ;  Kinuoeu  v. 
■ft'i'lls,  144  Mass  497;  Monroe  v. 
Ciilllns,  17  Ohio  St.,  7(1,');  (>)oley's 
Const Hutional  Limitations,  fith  ed., 
THH;  Morris  r.  Powell,  125  Ind.,  281; 
K.  c.  25  N'.  E.  Hep.,  221;  McCrary  on 
Klections,  3d  cd.,  §  ^U. 

"Morris  v.  Powell,  125  Ind.,  281; 
In  ri'  A|ipoliitmeiit  of  Supervisors,  52 
Fed.  K.,  254. 

n'.ople  r.  HolTman,  llfi  111.,  587. 
In  Neliraska,  it  was  liel<l  that  a  law 
■  I'lsnin  the  registration  ten  days 
befiire  the  election  was  invalid,  and 


tliat  an  elector  iinglit  subsequsntly 
claim  tlic  right  to  register  and  vote. 
State  r.  CJorner,  22  Neli.,  2(J5.  Contra, 
Stater.  Butts,  31  Kansas,  537;  Weil 
r.  C,illu)un,  25  Fed.  IJ.,  H(;5,  871.  In 
Cddo,  it  was  licld  lliat  a  law  closing 
the  registration  li\e  days  licfore  tlie 
election  was  sindiarlv  ucDnstilu- 
tioiuii.  Daggi'tt  r.  Hudson,  43  Oliio 
St.,  548.  Tlicse  cases  arc,  however, 
contriiry  to  the  I'urrcnt  of  authority. 
The  Mississippi  Constitution  (Art. 
XII,  Sec.  24'J)  compels  a  regisl  ration 
four  months  before  an  ole<'tion.  In 
Kliodc  Island  (Art.  VII,  Sec.  1)  a  re- 
gist  rat  lor.  in  the  previous  December 
Is  re(iuir  .i. 

»  E;:.noen  v.  Wells,  144  Mass.,  4117; 
See  also  Attorney-tiiTieral  v.  City  of 
DotndKMicli.l,  44  N.  W.  l{c'p.,388.  In 
tho  New  York  Constitution  of  1894 
(Art.  II,  Sec.  l>,  a  sindlar  provision 
was  inserted. 

•People  r.  Hoffman,  ;:'i   111..  587. 


342 


TIIK    UKIIIT    OK   SUFKUAGE. 


[CHAI-.  VI, 


provision  in  the  State  Constitution  wiiich  required  the  geiicnil 
assembly  to  provide  for  the  registration  of  all  persons  entitled  to 
vote  impliedly  forbade  a  law  for  the  registration  of  a  spe(ji;il 
class  of  voters.'" 


Seo  also  Mi'Malum  v.  Mayor  of  Savan- 
nah, fiG  (iii.,  '217;  Coninionwcallh  v. 
Mi-Cli'llaiid,  83  Ky.,  ('.8fl ;  Pnttorson  r. 
Bailow,  (lOl'a.  St.,  54,  77. 

1'  Morris  r.  Powell,  Vir,  Inil.,  281 ; 
s.  c.  25  N.  E.  Ri'i>.,  221.  Jiiilyo  Speer 
of  lliii  District  Court  of  tlio  United 
Stat(!s  has  said  that  ttio  onactmont 
of  local  registration-laws  which  dif- 
fered in  different  parts  of  tho  Stato 
tv.jt  a  violation  of  a  Static  oonstitn- 
lional  roiiuireiiient  that  "laws  of  a 
general  natun?  shall  have  uniform 
operation  througliout  llio  State,  and 
no  spneial  hiw  shall  Ixf  enacted  in  any 
case  for  which  provision  has  been 
maiirt  by  an  existing  jjeneral  law." 
He  said  furtlier:  "But  if  this  wore 
not  true,  it  would  be  none  I  he  less 
our  duty  to  disrej^ard  tlieni.  They  uri' 
plainly  in  eonllict  with  section  2,00,') 
of  tlio  Itevlsed  Statules,  which  pro- 
vides: '  Wiien,  under  the  aulhoilly  of 
the  constitution  or  law.s  of  any  Stale, 
any  act  is  recpiircd  to  be  done  as  a 
prerei|nisite  or  qualilleatinn  for  vot- 
ing, and  by  such  constituiion  or  laws 
peiviins  or  olllcers  are  charged  with 
tlied;iiyof  furnishing  to  citizens  an 
<)|)piiriunity  to  i)erforni  such  prere- 
<pdsiles,  or  to  become  (lualilied  to 
vole,  every  such  person  and  oltlcer 
shall  give  to  all  citizens  of  tho  United 
Slates  llie  sani(>  and  eipiai  opportunity 
to  perform  such  prere(|viisilo  and  to 
become  (|uali(led  to  vote.' 

"Now,  It  is  not  enough  tliat  ail 
the  citizens  of  the  same  county  shall 
have  an  ei|ual  opportunity,  but  all 
tlie  electors  of  tlio  Slate,  voting,  or 
desiring  to  volo,  at  tho  same  general 
(dection,  must  have  the  eipial  oppor- 
tunity to  i)erform  the   prereciuisltes. 


and  to  become  qualified  to  vote.  And 
It  is  a  necessary  imiilicatioii  of  tho 
language  of  this  statute  of  tlie  Uiiilod 
States,  that  tlio  preri'i|ulsite8  for 
voting  at  tho  same  general  election 
must  bo  equal  to  each  el(>ctor.  In- 
deed, it  is  true,  if  a  Stato  of  tho 
American  Union  prescril)es  for  a  por- 
tion of  its  citizens,  otherwise  entitlod 
to  vote,  prerequisites  for  voting  from 
which  other  citizens  are  relieved.  In 
that  extent  the  State  ceases  to  main- 
tain a  republican  form  of  government, 
an<i  enactments  with  such  eftect  arc 
contrary  to  tho  0>nstilution  of  tlid 
common  country.  It  will  lie  easy  tii 
understand  how,  witli  sucliasystcmor 
want  of  system  of  registration  laws,  os 
hereinbefori^  descritied,  the  most  inju- 
rious and  unfair  iiolitleal  r(>sullf  might 
lie  attained.  If  a  congri!.s8ioiial  dis- 
trict be'  gerrymandered  '  with  uneipiai 
registration  laws,  according  to  tlie 
lioliticai  complexion  of  certain  iocall- 
tios,  tlio  fundamental  laws  of  thfi 
United  Stales,  guarantceiiip  eriimi 
political  riglits,  could  bo  set  at  iiaiiptht. 
Tlie  power  of  Congress  over  natiuiml 
eleclioiis  is  nil  longer  in  question. 
Tills  lieing  a  national  election  ot 
general  character,  it  will  lie  well  l'> 
remember  that  it  is  clearly  within  lln' 
:icopo  of  the  national  laws." 

"It  follows,  tliercfore,  lliat  .•-iiii'i' 
tho  federal  law  requires  unirorniityln 
tlie  prerequisites  of  tlie  i-iglit  to  voti' 
as  alTocting  the  citizen,  otherwise  mi- 
titled  to  vote,  at  tlie  national  olcclion, 
and  further  n'quires  that  each  citizen 
shall  have  an  equal  opport'.mily  to  do 
the  act  made  a  prerequisiie  lo  Ihi' 
right  of  voting,  varying  and  iicon- 
sistent  rogistratiun  ouactmonts  nial- 


§<'■'"•] 


MINORITY    KErilESENTATK )X. 


848 


Where  under  the  Ohio  Constitution,  wliich  giive  the  right  of 
•sulTrage  to  "  white  male  citizens,"  it  was  Mettled  by  a  judieiul  in- 
ti  Tiircialion  that  pereons  having  a  prejuinderanee  of  wliito  blood 
\\v\v  "  white  "  within  the  meaning  of  the  (Jonstitulion ;  an  aet 
was  held  uncouHtitutional,  whici>,  wiiile  prescriljing  penalties 
af,'ainst  judges  of  eh.iction  who  rejeeteil  the  ballot  of  any  person, 
«ilh  knowledge  that  he  had  the  qnalifieations  of  a  voter,  contained 
a  proviso  that  tlie  act  and  its  penalties  "sjiall  not  apply  to  clerks 
(ir  jmlges  of  election  for  refusing  to  receive  the  votes  of  persons 
liaviiig  a  distinct  and  visible  admixture  of  African  blood,  nor  shall 
ilicv  be  liable  to  damagi'S  by  reason  of  such  rejection."'' 

It  was  held  that  a  statute  was  void  wliich  authorized  the  gov- 
ernor to  Set  aside  the  registration  in  a  county  ujion  j)roof  satis- 
factory to  him  of  fraud  or  irregularity  in  its  conduct.'^ 

5^  m.    Minority  Itcprosentatioii. 

A  favorite  remedy  for  misgovernment  ])roposeil  1)V  theoretical  re- 
formers consists  of  provisions  for  tlie  representation  of  miiu)rities, 
althnugli  in  practice  the  result  has  usually  been  to  give  the  control 
til  the  managers  of  tlie  political  machines  in  tlie  two  leading 
])aities  liy  ineaiisof  a  mutual  arrangement.  I'lider  the  Ohio  Con- 
.'^tilulilln.  wliich  proviileil  that  each  eltjctor  should  be  entitled  to 
vole  al  all  clei'tioiis,  it  was  held  that  a  statute,  denying  an  elector 
the  right  to  vote  for  mcu'e  tiian  two  out  of  four  members  of  the 
ptilice  board  at  the  same  election,  was  unconstitutional.'  It  was 
the  iipinion  of  .liidgc  McCrary,  that  an  act,  [lei'mitting  but  not  re- 
(|iiiiiiig  a  voter  to  concentrate  more  than  one  vote  upon  a  less 
ininilH^r  of  candidates  than  the  whole  number,  would  be  similarly 
uiuoustitutional,  unless  expressly  authorized.''^     It  is  safer,  conse- 


InR  iliffcrc'iil  |iroi'e(HiiBitoH,  anil  dony- 
iiiK  I'liuiil  ()|i|i(iruiMllies  to  jicrfonii 
tlii'iii,  aro  conlniry  to  llie  fi'doral 
fliilutc,  anil  ini^'iiloiy."  (In  rr  iip- 
|>iiiiitnii'nl  o'  Siipei'virtor-,  h'i  Fed. 
lii'l'..  'l^.l,  'iCl,  'iC.'J.)  S.'o  liiilliM-  r. 
E1Ii.|1m- (S.  C),  2-2  H.  K.  Ki>|>.,  -fir,. 
"  Mouriio  V.   Collins,    17  Oliio  St., 

6fir,. 

'■■Sl.ilo  V.  Stalon,  0  CulU.  (,Toim. ), 


2a;!;  Slioiifo  V.  Tilliiinn,  2  Itiirt.,  907; 
McCrai-y  on  F.IimM inns,  :)il  oil.,  §  22. 

§  .'>7.  '  Statu  f.  ('.viiHtiiiiliiii'.  42  Ohio 
St.,  VM ;  H.  c.  i)  .\nicrii'an  iml  Ivi.nllsli 
Coriiuralinn  Casos,  I!'.)  •12.  Iiiliiiiatioiis 
to  a  similar  I'lTcct  are  containeil  in  tlio 
o]iiiiiiiiis  ill  I'odplii  V.  Koiini'y,  !Ui  N.  Y., 
!2',tl;  I'.'oplo  r.  Cris.-foy,  HI  N.  Y.,  (>16, 
624. 

''  McCiury    on    Elections,    tld    ed.. 


;544 


THK    lUCHT    01<'    SUt'KKAttE, 


[CHAI'.  VI. 


<liicntly,  for  the  advocates  of  siu'h  a  reform,  to  procure  a  constitu- 
tii)iiiil  uineiidiuent  authorizing  its  trial.  The  Constitution  of  Illi- 
iHiis  jirovidus  tliat  — 

"  ill  all  ek'i'lions  of  reprcsentativt's  aforesaid,  each  qualified  voter  may 
east  as  many  votes  for  one  candidate  as  there  are  representatives  to  be 
elected,  or  may  distribute  the  same,  or  equal  uumliers  thereof,  ainoug 
the  candidates  as  he  shall  see  lit ;  and  the  candidates  highest  iu  votes 
shall  be  declared  elected."  ' 

8  5«.    The   Ballot. 

The  usual  mode  of  voting  at  popular  elections  in  the  United 
States  is  by  bidlot;  and  this  is  expressly  required  by  most  State 
constitutions. 1  "  A  liallot  may  be  defined  to  be  a  piece  of  paper 
or  other  suitable  material,  with  the  name  written  or  [ninfcil  u|](in 
it  of  the  person  to  be  voted  for;  and  where  tiu'  suftVajjjes  ;uv  t>ive)i 
in  this  foi'ni  each  of  the  eleeUirs  in  person  deposits  surii  a  vote  i)i 
the  box.  or  other  receptacle  provided  for  tlus  purpose,  and  Iccjit  liy 
the  proper  otHcers."^     The  object  of  the  re([uirenient  of  a  vote  by 


§  177,  cKitig  the  noti^  t.i  tho  case  of 
Slate  V.  Coiifiliinliiii',  1)  .\mericaii  and 
EnRlish  Corporal  ion  Cases,  .S!)-42 ; 
I'ooph^  r.  IVrley,  80  N.  Y.,  021. 

"  Illinois  Constitution,  .\rt.  IV, 
Sees.  7,  8. 

§  r>H.  1  Cooley'sCoiiKtiliitional  Limi- 
tations, Cth  6d.,  p.  7(10. 

''  Cusliiiig's  Law  and  I'nictico  ot 
Lc}5isiativ(!  Aartcmlilirs,  J  lOlt,  (iiiolcd 
Willi  aii|)n>'!il  liy  .Judne  CooU-y  in  his 
Constilulionai  Liniilutions,  (ith  od.,  p. 
7(iO:  "  In  tliis  cDimlry,  mill  iii(li'(>d  in 
every  cuMntiy  whore  oillccrs  are  cloi'- 
tivo,  ililTeront  nuidcs  havo  been 
adopted  for  tbo  oluetors  to  signify 
their  clioice.  Tho  niosl  eonimoii 
ino<les  havo  beou  oltlier  by  voting 
viva  von;  that  is,  by  the  elei'tor  openly 
naniliiK  the  person  ho  dcsignate.-t  for 
the  ollli'i',  or  by  liallot,  which  is  de- 
positing in  a,  liiix  provided  for  the 
purpose?  a  paper  on  wldeh  is  (he 
nani(«  of  (lie  person  he  inti^iids  for  llnj 
oflli-e.  Till'  prim  ipal  oliject  of  tills 
lant  mode  is  to  enable  tho  elector  to 


express  liis  opiniim  secretly,  witlioul 
lieiiig  sulijeet  t(i  lie  ovoniwed,  or 
to  any  ill-will  or  persecution  om  nc 
count  of  his  vote  for  oilliorof  tho 
candidal  es  wlio  may  bo  Iji  I'oro  tlio 
pulilic.  'V\\i\  method  of  voting  liy 
tablets  ill  Home  was  an  example  of 
this  manner  of  voting.  Tlioro  cortiiiii 
ollioors  appointed  for  that  piu|«i-i', 
ealled  Diriliilores,  delivorod  lo  o:irli 
volor  as  many  taiilots  as  thoro  w.'ii- 
oandidatoH,  oin>  of  whose  iiaiuos  w.m 
written  upon  every  taldot.  The  \o|or 
put  into  a  chest  prop.irod  for  that 
purpose  wliicli  of  those  tabh^ts  ho 
pleased,  and  they  were  aflerwiirils 
taken  out  and  I'lmntod.  Cicero  dollnos 
taldi'ls  to  be  litlle  liiKcln  in  wliieli  llio 
people  brought  their  sufTragos.  Tho 
clause  in  the  eonslituiion  dirootiiiB 
the  election  of  tiio  several  rtlateolUcers 
was  uiiiloulitodly  Intended  to  providii 
that  llie  eloi'tioii  sliould  bo  made  by 
tills  modeof  voliiig  to  (lie  ex<liisio»ot 
any  other.  In  Ibis  modi?  Ilio  troonioa 
can  individually  express  their  choico 


>■■] 


THE    liALLOT. 


345 


lialiot  is  concealment  of  the  choice  of  each  particular  elector.'^ 
'• 'riie  li.illiit  is  <lear  to  tlie  jieoplo,  for  it  uncovers  men's  faces,  and 
coiiceils  their  thoughts.  It  jj^ives  them  lliu  opportunity  of  doing 
wliit  they  liivc,  and  of  [jromising  all  that  tliey  are  asked."''  Any 
.stiiUitivs  which  tend  to  impair  tiie  serrocy  of  the  hallot  arc  tionse- 
i|iKnllv  unconstitutional  and  void.''  'I'hus.  an  act  was  held  void 
iis  iiicventiiig  secrecy,  wliieh  provided  that  each  inspector  on  re- 
{'(•i\iiig  the  hallot  should  endorse  the  same  with  a  number  corre- 
s|iiin(ling  to  the  nuniber  of  the  name  of  the  voter  on  the  poll  list.* 
Wlure  tlie  constitution  declared  tliat  all  ballots  sliould  be  "fairly 
wiilten,"  it  was  held  tliat  a  printed  ballot  was  sullicient." 

Ill  late  yeai-s  a  system  of  voting,  originally  adopted  in  .Australia, 
lias  iu'cii  introduced  into  several  States  as  well  as  other  countries. 
Its  L;('iii'ral  features  ai'c  that  all  votes  must  be  cast  by  the  use  of 
nil  (il'tirial  ballot  jirinted  and  furnished  by  the  goveriiiiienl.  In 
Kimie  States,  a  separate  ballot  is  [irinled  for  eai  h  party,  or  group  of 
viitcis  of  the  numlier  tixed  by  the  act,  that  has  nominated 
camlidates.  In  others,  a  blanket  ballot  nuist  be  used,  )ipou 
wliich  the  names  of  all  such  candidates  are  printed  in  parallel  col- 
iiiiiiis  and  the  voter  indicates  by  a  mark  his  preference."  The  coii- 
siiiiuionality  of  these  laws  has  been  fre(jueiitly  iitlaeked."  It  has 
Iwciilield  thatthe  reciuiivineiit  that  all  votesl)e  iiiiule  bytheuse  of  an 
(illlcial  ballot  selected  and  iirepared  in  secret  is  not,  an  infi  iiigeinent 


wiOiiiut  bi'injj  uiidor  tlio  iiccoKslty  of 
imlilicly  (li'i-larinj?  tlio  oliji'ct  of  tlioir 
t'lioiiu;  Ihoir  colloL'livo  voU^o  i^an  bo 
ras-ily  iisccrlaiiKMl  and  tho  oviilcnce 
of  it  tniiisiuilUMl  to  iho  placo  wIum'o 
lIuMi-  votcH  iiro  to  111!  foiiiiti'd,  and 
Ihi'  result  dcclari'd  with  ns  litlln  in- 
(■iinviMiii'iu'o  iiH  luissililo."  Ti'iiipli'  r. 
M(M.|,4  VI.,  n:).-,,  541  r.fj. 

»  I'fnpl,.  r.  IVas,",  27  N.  Y.,  45,  81 ; 
C'omiiiiiiiw.'iiltli  r.  Woi'piT,  3  S.  A  II. 
(Til.  i, '.III;  VVilllniii.-,  r.  Sli'iii,  ;1S  Ind., 
'JO;  lirlsliiii  1'.  Cli'aiy,  '2i\  Minn.,  107; 
Tom|ilcii.  Mi^ad.  4  Vt.,  5.15;  Cooli-y'H 
Oiii^i national  Liniilation.'^,  (itli  oil., 
|i|i.  7(;i^7(!;l. 

♦I'ii'cio    In    Dofcusi-    of    I'l.inriuH, 


ed  liy  Cooli'y,  ConstUiilioiwil  Liinila- 
tioii.s,  (illi  (Ml.,  p.  7<l'i,  not'". 

'Williams  r.  Si. 'in,  Ms  Ind..  ',Ml; 
Brtsliiii  V.  Clcary.  -M  Jliiiii.,  107. 

»  Williams  r.  Sh>iii,  ;iS  In.i.,  IK); 
Bi'ishin  V.  Cli-aiy,  2(1  Minn.,  107:  ap- 
proved in  McC'raiy  on  Kli'ctionK,  'M 
I'd.,  fj  5i;t.  Hi'c,  hnwi'vi'i',  Hoii^,'o  v. 
Lynmn,  10(1  lil.,  ;i:)7. 

"  Ti'inplo  V.  Moad,  4  Vt.,  K\r,,  541; 
lli'iisliaw  r.  Fo.slor,  'J  I'ii'k.  (Mabs.), 
•.n'l. 

*  I'oi'  a  ili'laili'd  account,  soe  Wig- 
inori''8  Australian  Hallot  Sy.stom. 

'■•  For  a  collection  of  cases  afl'ocliQg 
the  conslitutionallty  of  such  laws, 
SCI"    liallot     Uoforni :     Its     Ojiistllu- 


Fuisytli's  Clcoro,  vol.  1,  ]>.  3;)9,  qiiot-      tionality,  liy  Wigmore,   23   Am.  Law 

llcviow,  719. 


84('. 


THK   IJALLOT. 


[CIIAl-.  VI. 


of  ii  constitutional  provision  tliat  all  elections  shall  be  "freu  and 


open 


tliat  the  linutation  of  a  voter  to  two  and  one-lialf  minutes 


for  the  preparation  of  his  ballot  is  not  unreasonable  nor  invalid  : " 
that  a  [irovisiou  permitting  the  attendance  of  a  sworn  spcciiil 
constable  to  assist  blind  voters  or  those  who  were  othurwist' 
"  physically  or  educationally  "  unable  to  mark  their  ballots  dnes 
not  deprive  such  voters  of  the  equal  protection  of  the  laws,  nor 
establish  inequality  of  civil  or  i)olitical  rights,  nor  estalilish 
new  educational  and  physical  qualifications  for  voters ; '-  that 
the  recpiireinent  that  no  names  be  printed  on  the  ballot,  ex- 
cept those  of  the  candidates  of  political  parties,  is  not  an  mi- 
reasonable  restriction  of  the  rights  of  an  independent  voter, 
provided  lie  be  allowed  to  write  on  the  ballot  the  name  of  any 
other  candidate  ;  '^  that  a  prohibition  against  electioneering  witliin 
a  reasonable  distan(H)  of  the  polls  is  not  an  infringement  ef 
any  rights  protected  by  either  a  State  or  the  Federal  Constitu- 
tion;!* ^,]j^t;  ji  statute  may  forbid  the  printing  of  a  candidate's 
name  in  the  column  of  more  than  one  party,  although  he  has  been 
nominated  by  two  or  more  ;  '*  but  tliat  one  is  A'oid  which  forbids 
an  elector  to  vote  for  a  peraoii  whose  name  is  not  jirinted  in  tlie 
ollicial  ballot,  unless  expressly  authorized  by  the  constitution."' 

Every  ballot  law,  however,  must  contain  due  protection  for  tlie 
rights  of  all  voters  ([ualitied  by  the  State  constitution.  Conse- 
queiitly,  in  the  abseni;(!  of  express  authority,  a  law  would  lie  un- 
constitutional, wliich  prevented  from  the  expression  of  his  clioice 
a  voter  who,  through  a  physical  defect  or  lack  of  education,  was  un- 
able intelligently  to  select  or  mark  a  ballot.'"    A  recent  case  liolds 


I"  Stato  r.  McMillan,  Missouri  811- 
prenie  Court,  18  S.  W.  Rep,,  784. 

"  Poarson  v.  Hoard  of  SiipcrvlsorH 
of  Brunswlek  County  iVii. )  Court  of 
Ai)|)oals,  21  S.  E.  llep.,  4S:). 

"  Il.id. 

"Stnto  V.  niaek,  .5-1  N.  ,T.  Liiw, 
44(; ;  s.  c.  24  .\tl.  Hep.,  4Hn  ;  Do  Walt  v. 
Hartley  (Vi\.  a.  c),  24  Atl.  llep.,  IS.-i. 
See  nlHO  Miner  r.  Olin,  151)  Mass.,  487  ; 
B.  <!.  U  N.  E.  Uep.,  721. 

"Bteto  V.  Black,  54  N.  J.  Law, 
44r, ;  B.  c.  24  Atl.  Rep.,  4H0. 


15  Todd  V.  Board  of  Election  Com- 
missionors  of  Kalamazoo  (Micliigaii 
Siipremr  Court),  f)2  N.  W.  Rep.,  'iMn 
ease  of  doubtful  authority. 

19  State  V.  Dillon,  .32  Floriila,  .lih: 
H.  ('..  14  South(>rn  Rop.,  383. 

"  This  point  has  lieeu  the  sulijwt 
of  much  diHciission  in  recent  peliti- 
eal  eontosta  in  New  York  over  tlio 
proposed  change  in  the  system  o( 
election  by  ballot.  The  folloning 
opinion,  signed  by  soma  of  tlin  most 
eminent  luonibers  at  the  Xc«'  Vurk 


■'•'■] 


GENEIiAL   OnSKItVATIUXS. 


847 


loridn,  ■ii">; 
3. 

I  ■111  piilitl- 


tliiit  :i  liiw  ■wliii.'h  iiUowod  ii  voto  for  all  the  nominal ioin  of  a  jioliti- 
ciLJ  pai'tv  liy  s'anipiiitf  a  cross  oi)[)osite  tin;  name  of  sneli  parlv  at 
the  head  of  the  ballot  was  uneonstitutional,  as  a  discrimiiiaiion 
;ii,f;iinst  classes  of  voters  who  did  not  adhere  to  any  paity  and 
li;id  made  nominations  for  only  a  part  of  the  ofKiees  to  be  tilled 
at  the  election.'*  The  soundness  of  this  decision  may  well  be 
(l(mlit('(l. 

t;  "»!».  Ooneral  01»sorvatl«ms  upon  the  Itii^lit  of  Suffrnjrc. 

A  survey  of  the  laws  and  constitutions  established  in  the  Tnited 
Sditcs  durinsjf  the  nineteenth  century,  shows  a  steady  extension  of 
till'  riifht  of  suffraf^e,  with  no  reaction  except  recently  in  the  South 
til  reiluce  the  negro  vote  by  inconvenient  regfulations  for  registra- 
tion lis  to  ])revious  residence,  educational  and  tax-fjaying  qualifi- 
ratiiiiis.i  Universal  manhood  suffrage  is  now  the  rule  in  nearly 
all  the  States  of  the  Union,  and  there  is  at  least  a  tem^iorary 
ti'iiilency  toward  the  further  extension  of  the  right  to  women. 
I'liililieeies  of  resultant  evil  have  been  frequent,  and  opposition  to 


Din:  Hasfuriiislii'd  to  Governor  Flower 
aiid  tninsniitted  liy  hliii  to  tlio  legis- 
liitwreiii  April,  1H',)4:  — 

■'  First—  Any  iliily  qualified  elector  Ims 
a  rii,'lit  to  vote  for  any  competent  person  to 
fill  iiii  iillice  for  widoli  a  person  is  to  1)0 
c'li'c'ti'd  lit  the  election  at  wliieli  he  de- 
sin.'s  to  vote,  wlietlier  or  not  siu'li  person 
for  whom  he  desires  to  vote  lias  been  so 
11  •iiiiiiiili'd  that  his  name  is  |iriiiteil  upon 
til  iilhrial  liallot.  Any  ballot  act  which 
ilo.s  mil  afford  all  voters,  wliether  illiter- 
:;:■■  or  not,  an  opportunity  and  rcason- 
iiIp!i'  fiiiilities  for  voting  tor  such  a  person 
is  micoii-^titutional. 

"Second  —  If  a  secret  iiallot  act  pre- 
si'ribiii;;  an  ollicial  ballot  does  not  jier- 
niil  the  voter  to  write  upon  the  liallol  tho 
name  oi  the  person  for  whom  he  desires 
to  vote,  whose  name  is  not  Imrno  upon 
the  ollicial  ballot,  or  to  vole  for  such 
pLTMiiibyaiiaster  placed  ujion  such  ballot, 
or  by  some  other  method,  the  act  is  un- 
eoiistitutioual. 

"  Third  —  Such  a  ballot  act  must  enalile 
voters  wlio,  by  reaaou  of  iijnoraiice  or 
pliysical  disaliility,  cannot  write,  to  have 
the  assistance  of  u  conipotent  person  to 


write  upon,  or  to  attix  to  the  ollicial  ballot 
the  name  of  a  person  not  borne  upon  it, 
iitit  for  whom  tlicy  desire  to  vote,  and 
that  assistance  iiiiist  be  allowed  to  such 
an  extent,  and  in  such  a  manner,  that 
tho  illiterate  or  disalded  person  may  1)6 
certain  that  the  name  of  the  pi.-rson  he 
desires  to  vote  for  has  been  placed  upon 
the  ballot,  otherwise  it  isunconstiiational. 

.IaMKS   I'.    t'AKTElt,      .ToiIX    V.    DlI.I.ON, 
(iKOIlllR    DLISS,  .TdllX     K,     I'.VUSONS, 

W.  11.  HonMII.OWER,  W.   If.   ri'.i  K11.\M, 
Hi'oii  Ii.  Coi-K.  Elihu  KoilT, 

Franci.s  L.Stktson,  JosKrii  K.Cho.vtb." 

Ill  Cook  1'.  state,  90  Teiiii.,  407; 
8.  c.  10  S.  W.  Rep.,  471,  it  was  held 
that  n  law  wuh  coiis'Jtulioiial  which 
ooinpelled  eni'li  voter  without  assi.'st- 
anco  to  marli  tho  names  of  tlii<  can- 
didates whom  he  selpetcd.  But  Boe 
State  1'.  Dillon,  S'2  Florida,  !H7);  s.  c. 
14  Southern  Rep.,  38.!;  xupra. 

1"  Easton  v.  Brown,  !W  Cal.,  371, 
,'!73. 

§  5fl.  1  Soe  the  Constitution  of  Mis- 
siBsippi. 


31« 


TiiK  itioiiT  OK  sri-i'i;A(;i':. 


[l.'IIAP.  VI. 


tniili  extension  luis  Ix'ou  made  from  lliosu  of  tliu  community  witli 
the  liirg^'st  woallli  iiiul  tlii!  (U'l'IicsL  learning.^  IJiit  tliey  liave  not 
lu'cu  jiHtifieil.  History  i)rovcs  tliat,  in  all  ages,  wherever  jkiwit 
lias  liuen  vested  in  a  elass,  no  matter  how  intelligent,  tliey  iiave 
exercised  it  hy  legislation  oppressive  to  those  who  were  disfrau- 
chised,  and  that  even  if  selfishness  can  he  eliminated,  ignorance  of 
the  wants  of  the  disfranchised  j)i()duees  a  similar  result.  For 
proof  of  this  we  need  not  go  hack  to  the  repuhlics  of  (i recce  and 
Rome,  to  the  Italian  cities  of  the;  middle  ages,  or  even  to  Kngland 
and  France  during  the  eighteenth  century.  It  is  evident  in  the 
unfair  treatment  of  the  Hindoos  hy  (ireat  Britain  at  tlie  present 
time,  in  the  legislation  against  tiie  colored  freedmeu  in  tlic  South 
before  the  adoption  of  the  I-'oiirteenth  and  Fiftn  nth  AniciKhiuiits, 
in  the  li(]Uor  and  Sunday  laws,  with  which  the  inliahitants  of  the 
country  districts  still  ()i)pre -s  the  poor>'r  classes  in  New  York  city.' 
All  of  these  M'e re  and  are  supported  hy  a  large  niajoiity  of  lliosc 
with  the  greatest  amount  of  pro[)erty  iind  the  most  scholastic  c(hi- 
cation,  aiul  in  the  latter  case,  undouhtedly.  in  the  hcnevolciit 
helief  that  tht;  jioor  will  he  hcnelited  hy  the  denial  of  privileges 
which  they  themselves  can  exercise.  The  possession  of  wc.ilt'.i 
(hies  not  destroy  sehishness.  nor  thi;  study  of  Imolis  give  a  kimwl- 
edge  of  tlie  wants  of  Jniinan  natnr,;.'      'Die  instinct  of  the  pe<!|)le 


'- Woljstcr  mill  Ki'iit,  lulli  (ii>|icisi'(l 
the  reindviil  of  pioiiinMy  (lUullJii-.-itldiis. 
See  (lie  (Jobiiti)  ill  tin' New  Vnik  Con- 
Htiliitliinnl  Coiivcniioii  of  IS'JI,  uikI 
that  (it  Jlassiichusclls  in  I't-M. 

'  Iq  August,  Isori,  ii  III  ill  WHS  ar- 
rostiMl  ill  New  York  City  for  Kclliu;^ 
ico  oil  Sunchiy  to  tho  iiiuiat"s  of  t<',i(>- 
mont  hou.scs.  Hce  tlio  Now  York 
Woild  for  that  luoiilh. 

*  "It  is  a  fact,  till'  full  sigiiillcMnoc 
of  which  has  not  yi't  liecii  pcrccivcil 
liy  tlio  iiiassi'H,  that  the  coiiililioii  of 
society  which  rcinlcrrt  the  right  of 
entry  to  tlui  institutions  for  higher 
edueatiou  tho  «luio~l  oxclielve  jiiivl- 
logo  of  wealth,  Iciiils,  from  tlie  closo 
eoniieelion  of  tliese  institutions  with 
the  intellect unl  life  of  society,  to  ren- 
der them  (however  much   tiiey  may, 


anil  ill),  fnuii  the  highesl  miilives 
eiidcavor  (o  resist  such  leiidciicy, 
inlluciiccs  retanllug  to  a.  coiisidenihlc 
di'gree  tlin  progro.ss  of  tlie  devclcii- 
nieiit  whicli  society  is  undergoing. 

"  We  have,  cl)1l^e(luenlly,  at  till' pris 
sent  day,  in  most  of  our  advauccd 
societies  the  remarkaldo  iiher.onienon 
of  the  intellectual  and  educal  I'd  classes 
at  lirst  almost  iuvariahly  cuiideiniiiiiL! 
and  resisting  Ihi!  successive  steps  in 
our  social  di'vclopiuent,  uttering  the 
most  glomiiy  warnings  mid  fore'iod- 
ing  i  .".H  these  sli  p.s  havi'  heen  t:i!;eri 
and  I  lien  tardily  ,i  list  il'y  lag  them  when 
they  liave  heciinie  imitteisol'  hisloiy; 
that  is  to  say,  wlieii  approval  or  ilis- 
appnival  has  long  ceased  to  i»'  ef 
luaetical  importance.  It  has  to  be 
confessed  that  in  England  during  the 


§:,it.] 


(iKNK.ISAI,    OliSKltVATlllNS. 


849 


i.s  iisir.illy  wiser  tliau  l\w  tlu'ory  I'volvcil  in  liis  lilirarv  liy  a  jiliilos- 
oiilicr.  Ill  a  state  of  civilization,  wlicic^  soim;  of  tlie  riulii'st  do  not 
own  a  rood  of  land,  the  limitation  of  the  suifrarfc  to  freuhohhii-s 
is  manifestly  ahsurd,  as  well  as  iirj)raetieal)l('.  No  lojij^ieal  line  of 
liuinaieation  can  he  drawn  hetween  the  owners  of  personal  j)ro[)- 
t'ltv,  wliich  shfuild  divide  a  governiiifr  from  a  snl)jei't  class,  unless 
all  tiix-paycrs  are  included  in  the  first.  'I'lie  liinilaiion  of  the 
rigiit  to  Vote  to  tax-payers  is  still  tried  in  soir.e  States,  hut  has 
heeoine  an  expensive  farce,  since  it  only  results  in  an  iiieicas(!  of 
tlii^  cost  of  the  campaign,  Avithout  raising  the  intelligence  of 
the  voters.  For  the  poll-taxes  of  the  pool'  are  paid  hy  tlie  politi- 
cal [lartics  who  expect  to  receive  their  votes.  More  plausihle  are 
the  aigiinients  in  favor  of  an  educational  qualification  ;  hut  this 
reiiuircs  a  degree  of  impaitiality  in  the  examiners  such  as  is 
I'urcly  found  among  politicians  or  pid)lic  servants.  The  section 
of  the  Constitution  shown  to  the  voter  is  first  taught  him  hy 
heart,  as  was  the  neck-verse  to  the  malefactors  wlio  wished  to 
plead  hencllt  of  tlu'  clerg}'.''  Moreover,  the  uncducatecl  need  pro- 
tection from  opiiression  even  more  than  those  who  have   hecii  to 

SClllHll. 

But  the  opponents  of  universal  suffrage  contend  that,  altliough 
there  may  he  danger  of  class  tyranny  in  an  oliganliy,  there  is  far 
more  in  a  democracy  ;  and  that  tyranny  hy  the  lowest  class,  which 
is  without  i)roperty  and  education,  is  the  mr)st  oppressive  of  all. 
The  history  of  the  United  States  docs  not  sujjport  the  claim.  A 
cari'fnl  student  of  the  dift'eient  periods  since  the  declaration    of 

nini'l"(ntli     coulury     tins     oduciitt-il  scciiri' rcliiiiousfrcodomjuul  tmil'olisli 

c'liis^i's,  ill  nliiiost  nil  till' (^n>iLt,  politi-  Hiavory.      Tlio   niotivo   ferco    behind 

I'nl  clums-ri'S  that  linvn  lieoii  elTcc-tcd,  tli(!  loiiK  liwt  of  progrosBivo  inoasiires 

liiivi' talic'ii  tho  sidi^  of  till!  iiarty  after-  inrriod    during    this   jioriod    lias    in 

waul  adiiiittril   to  havo  boen   iu   tlio  srarci'Iy    any     n[iiii'eclablt)     iiioiisiire 

wroiit;  —  they  have  almost  invarialily  roirio  from   tho  ediieiili'd  rlassi's;   it 

opposi'd  at  tho  timo    tho    nieasiiros  has  coiiio  almost  cxeliislvoly  froin  tho 

tlu'y  liavn  subspqiumtly  oomo  to  do-  iiiiddlo  and  lowc'r  classes,  who  liavo 

fond    and    justify.      This    is    to    be  in  turn  aeO-d  not  undi>r  tho  stimulus 


noUci'il  alike  of  measures  which  have 
exti'iidi'diMlucalion,  wliirh  have  enuiii- 
I'ipiited  trade,  which  have  exlinded 
the  francliise.  Tho  eduealed  eliisses 
have  even,  it  must  be  confessed,  op- 
posed incasui-ea  which  have  tended  to 


of  intelleclual  motives,  but  under  tho 
inllueneeof  their  altruistic  feeiinj^s." 
(Kidd,  Social  Evolution,  American 
eil.,  pii.  2r.'>-3r)3.) 

<>  beo  Giay's  notes  to  Iludlbias. 


ano 


TlIK    KKiHT    Ob'    SllM'IiACK. 


[•■IIAIV  VI. 


iiidrpi'iKk'nco  iiiiist  he  couvinucd  lluit  tin;  clMriU'tcr  of  pulilic  nun 
is  (juiti'  iis  liij^li  now  as  it  was  bcton!  tiio  Hiil't'iafro  was  ciilarj,'!;!!. 
Anil  wiifn  we  cimiiiaiu  the  forniptioii  in  I'lanii;,  umU'r  XaiMilioii 
III,  witii  tlio  conililidu  of  all'aiis  nndur  ilu-  jiiesi'Mt  I'lendi  i('|mli- 
lic,  tlii'ii!  can  bi'  no  iloal)t  as  to  tiio  supurioiity  of  the  latter.  Tiie 
approval  of  tlu;  two  Napoleons  l)y  plebiscites  was,  in  so  far  iis  it 
was  voluntary,''  due  to  a  preference  for  the  will  of  one  stront,'  man, 
who  eoiilil  preserve  order  and  .save  property  from  pillage,  over  an 
olif^arehy  snbjrri  inly  to  the  ihn^ats  of  the  mob  at  Paris,  who  not 
only  diuiied  loi.i,  ,^elf-governnient  to  the  provinees,  but  were  pow- 
erless to  eiiforee  their  own  orders,  and  tlu'eatened  legislation  of 
the  most  eoniniunistie  character. 

In  the  Spanish-American  so-<!alled  republics,  wliere  snffiaLje  is 
nominally  universal,  by  means  of  suspensions  of  tiic  constitution 
and  the  decdaration  of  states  of  siejrc,  tiie  maintenance  of  soMit  is 
at  tiie  polls,  and  manipulation  of  the  count,  the  cast  of  the  li.dlot 
is  an  idh^  ceremony,  and  the  real  f,fovcriiment  a  militaiy  dcs])ot- 
ism.  Neither  France  nor  America,  soiitli  of  the  United  States,  liius 
local  self-government,  or  courts  which  are  einiiowered  to  uphold 
the  written  constitutions. 

At  the  present  time  there  is  a  growing  feeling  that  much  inis- 
cliicf  has  been  caiisi;d  by  the  liberal  extension  of  the  suifiage  to 
foreigners;  and  the  recent  New  York  (,'onstitution  shows  a  leac- 
tioii  in  the  other  direction.  Rut  if  their  immigration  is  to  he 
aUowed,  not  only  their  own  interests  but  tliose  of  the  community 
seem  to  demand  tliat  they  have  a  voice  in  making  the  laws  ami 
in  selecting  those  wiio  are  to  enforce  them,  if  they  are  to  oiiey 
those  laws  and  olliceis,  and  not  to  sulfcr  injustice  and  persecution. 
No  student  of  life  to-day  in  our  great  cities,  as  well  as  in  those  of 
Europe,  can  fail  to  be  impressed  by  the  constant  discrimination 
on  grounds  of  race  and  religion  by  public  oflicials,  some  of 
them  judicial,  whose  duties  bring  tiicm  into  ('ontaet  with  tiic  poor, 
and  by  the  need  of  protection  tlirongii  a  sliare  in  the  go\-crMincnt 
to  immigrants  of  despised  I'aecs,  if  they  are  to  be  permitted  to 
pursue  their  trades  unmolested." 

'Soo  LicliiT,  Civil  LibiTty,   Appcn-      Coinnilttoc,   appoliiteil    by   tho   Now 

(lix  I.  York  S(>iiiiti>  in  IH'.lt,  fmiiislies  aljuu- 

'  Till)  ti>8tiiiioiiy  liefon?  tlio  Li'xow      danl  proof  of  lliis.     In  tlio  easii  of 


§^''-] 


(IKNUll.Vt.   OltSKltVATlONS. 


861 


Tilt'  only  facta  in  the  United  Stiites  tliiit  .support  tho  ojiiioncntH 
(jf  iiiiivrrsiil  HutTia<i;e  me  tliu  corruption  in  tlii;  South  foiiuiilcnt 
villi  tilt!  extension  of  the  franeliise  to  the;  l)hick.s ;  the  inuladiiiin- 
istnitioii  of  our  fjreat  cities  in  recent  times;  and  the  |ire.sent  con- 
(liliiiii  of  our  State  legislatures.  Hut  the  thefts  of  tlie  cuIormI 
Icijislatures  of  tho  South  were  not  the  result  of  the  extension  of 
the  sufl'raffo  to  the  blacks,  hut  of  their  su[)port  hy  corrupt  Feder.il 
()tliii;ils  and  the  Federal  army.  As  soon  as  the  troops  were  re- 
moved, the  inlluence  of  j)roperty  and  education  gained  tlieir  nor- 
m;il  balance.  I'.ven  in  the  States  where  tlie  negroes  aie  in  ii 
iiiiijority,  till!  white  race  has  ruled.  In  but  one  of  them,  Missis- 
sippi, has  it  been  considered  necicssary  to  disfraiicliise  tho  illiterate 
and  non-taxpayers.  While  the  etfect  of  the  ballot  in  llu;  hands 
(if  tlie  blacks  has  been  such  that  their  leaders,  many  of  whom 
are  men  of  a  very  high  degree  of  intelligence  as  well  as  zeal,  can 
[mint  out  no  governmental  acts  which  are  unjust  to  them  in  any 
States,  and  confine  their  com[ilaints  to  social  grievances.*  Were 
the  criloreil  race  again  disfrancliiseil,  tliere  can  be  little  doubt  but 
tlwl  the  Foiu'teenth  Amendment  would  be  inadeiiuale  to  give  theiu 
full  protection,  not  only  from  o|)pressivo  legislation  in  the  South, 
liut  even  from  oppressive  administrative  government  in  tho 
Nii'lh. 

'i'lie  source  of  the  corruption  in  tlie  cities  of  the  North,  when 
analyzed,  will  be  found  to  lie  rather  in  the  acts  of  State  legisla- 
tures, where  the  cities'  representatives  are  in  a  minority,  than  in 
those  of  the  municipal  ollicials  unbuttressed  from  without.  The 
condition  of  the  Stiite  legislatures  is  tlie  most  crying  disgrace  to 
universal  suffrage  ;  but,  upon  inspection,  they  seem  to  be  little 
Wdi-se  than  those  chosen  when  freeholders  had  the  exclusive 
right  to  share  in  the  election  of  upper  houses;'-'  and  they  are  far 

Pi'dplc  cr  re/.  NoclmiMi'iisi'.  WiinUiii  iif  Sun,  which  lire  of  fjrcnt   lntcrost  to 

I'lly  I'risoii,  141  N.  Y.,  iiiK  uln'ii'  tin'  HtmliMits  of  sofii)lot!y.     Seo  al-o  Jiis- 

wiitor  WHS  coiniscl,  it  was  iidiiiitti'd  lico  and  Jurispnidi'iiLO,  hy  a  (olmi'd 

Unit  it  was  almost  linpnssilili!  for  n  onthiisiasi ;   and  the  roiiiaiUalili' syiu- 

Polisli  Jow  to  olitain  a  liccuso  to  act  posinin  on  ik-kio  suffrano  in  Iho  North 

iif  a  master  or  <>nii'l<'J''"n  plnnibcr  In  Anu'i-icaii     Reviow,     vol.     128.      The 

Xi'w  York  City.  South   Carolina    Couvcutioii,   now  in 

"  Si>o  th(!  Afro-Ainorii'an  NolOH,  and  session,  si'cins  resolved  to  follow  tho 

i'flrra.--|ioiid(>iii'i',     ('sp<(iially     that    ot  cxaiiipli' of  Mississippi. 

T.  Thomas  Fortune,  in  the  Now  York  '  So«    tho    illuetratlons   in    Ham- 


;if)2 


THK    lUUIlT    OK    HUFFUAflE. 


[CIIAI'.  VI. 


sujioiior  to  the  parliaments  elected  by  the  rotten  lK)roui,'hs  of 
iMighmd.  Upon  uhise  exaniiiuvtioti,  it  will  be  found  thiit  ilu; 
lar<,'er  number  of  their  members,  in  matters  which  imniediiitilv 
all'eet  their  constituents,  and  those  which  relate  to  tiie  Sliilc  al 
lartcc  follow  the  wisiies,  and  usually  the  interests,  of  those  who 
elcctt'il  them:  ai:d  that  their  misdeeds,  blackmail  and  bribes,  iiro 
conliiied  to  bills  which  relate  to  other  constituencies,  tlie  lenicily 
foi' wiiich  will  eventually  be  founil  in  new  provisions  in  Staliu'on- 
slitutiuiis  to  sccuri^  iiome-rnle  for  cities,  and  estal)lisli  local  sclf- 
jjfoverninent,  free  from  interference  by  the  State  as  well  as  tlit' 
national  li.'gislatiire.  'I'hcy  can  no  more  properly  be  ehariieil  to 
the  account  of  self-government  by  universal  suffrage  than  can  tliu 
itastle  rule  and  des[)otic  acts  of  the  magistrates  appointed  from  tliu 
class  of  laud-owners  be  treated  as  su[>ported  by  the  public  senti- 
ment of  Ireland. 

In  every  struggle  for  control,  property  and  education  will  in 
the  end  outweigh  poverty  and  illiteracy,  althongh  the  latter  iiave 
the  nnmerical  advantage.  The  leaders  of  the  I''rench  revolution 
were  outcast  nol)lenn'n.  such  as  Mirabeau,  Talleyrand  and  lianas, 
and  elientlcss  members  of  the;  learned  i)r,)fessions,  such  as  KoIhs- 
piern>  and  Marat.  The  reconstructed  governments  in  the  South 
were  headed,  and  the  greater  part  of  the  spoils  retained,  by  eiiu- 
cated  white  adventurers,  who  cajoled  the  colored  vote,  and  were 
snjiported  by  Northern  bayonets.  .\n(l  as  soon  as  the  army  \v;i.s 
removed,  the  tax-payers  had  no  dillictdty  in  assuming  and  reliiiii- 
ii!g  j.olitie.d  power.  The  absolute  control  of  pi'iv.ile  credit,  and 
tlit^  power  to  give  eni|iloynu'nt  to  labor,  will  always,  in  the  eiiil, 
iift'ord  lo  the  owners  of  capital  anijjle  [)rotection  foi'  the  legitimale 
use  of  property  whieii  they  have  legitimately  accpurcd. 

The  great  danger  of  universal  suffrage,  of  mob-rule  as  it  is  called 
by  its  enenues,  consists  in  its  liability  to  sudden  gusts  of  passion, 
whiidi  cause  ill-considered  acts  for  the  destruction  of  proj)erty  and 
for  repudiation,  intended  to  injure  the  fortunate  few,  which  ulti- 
mately react  against  all.  Sectional  differences  in  the  loi'ation  of 
creditors  and  wealth  make  these  more  likely  to  occur  and  hanlcr 


moud's  Political  Ilistoiy  of  Now  York       Fathors,    by   Jolin    Hncli    MillMstcr, 
and   The  rolitical   Depriivily  of  the      Alluntic  Moutlily,  vol.  Ixxv,  p.  020. 


§;ii..] 


OKNEUAr-    OIISKIIVATIDNS. 


ar.:] 


til  control."'  Aniplo  ])roti'i'tinii  iij^iiiiist  lliciii  liiis  liecii  iiiTonlid 
liitlifrti)  liy  tlio  l)ii'''U'rs  of  written  coiistitiitions  I'liforcud  Ijy  iliu 
courts,  ill  wliidi  the  coiiscrvativt)  eleiiieiits  of  tlin  coniiimiiity 
Inivi'  ;il\vii>-s  fouml  ii(lf(iii;it(!  rcprt'sciitiitioii ;  and  tlic  l)i'eailiiiij^ 
s]i;iii'  wliicli  tliL'ir  reHoliile  action  has  conipt'lhMl  lias  heen  to  the 
1  'csi'iit  enotiji;h  to  jifive  time  for  tlie  jiassion  to  subside,  and  coni- 
iiKi  I  sense  ajjain  to  resume  ita  sway. 

i'iii'si!  words,  iiowever,  are  not  intended  as  an  argninent  in  fiivor 
(it  niiivi'i'sal  snil'raijfo  for  all  times  and  [leojiles.  That  many  of  the 
Imiiiiii  race  are,  in  their  present  condition,  ineapahle  of  self-t,M)V- 
fiiiiiu'iit,  and  need  despotic,  rule  to  j  ivscrve  order  ami  save  from 
tlii'I't  tlie  fruit.s  of  toil  and  self-denial,  eaiinot  he  doubted.  'J'liat 
wliiTc  the  land  is  in  the  hands  of  a  small  class,  of  a  race  different 
liiiiii  the  majority,  it  will  be  Iwtter  for  their  interests  to  keep  tiie 
nilr  ill  their  own  hands,  is  as  clear  as  that  it  is  foolish  to  drive  a 
iidiNi'  witiiout  a  bridle.  Altliouj,di  a  small  property  t(!st  has  been 
1  idved  to  l)e  impraetieable,  except  as  a  transitional  expedient,  and 


'"  "If  we  should  extend  ourcnudor 
w)  fur  MS  to  own  Hint  tlie  nmjoiily  of 
iiiuiikinil  are  genenilly  iiiidei-  tlie  do- 
iiiiiiiiJli  (if  lielievdleiiee  and  fXimil  ill- 
li'iilions,  y(>t  it  miiHt  bo  eonfeHwed  that 
a  viisi  iiiHJority  fipi|iieiitly  trniisuress, 
mill,  HJmt  in  more  decidedly  in  point, 
mil  only  (I  iimjorlly,  but  almost  all, 
I'lMilliie  tlielr  benevoleueo  to  thoir 
fiiiiiilies,  relations,  |iersoiinl  friends, 
I'iuisli,  vllliifje,  city,  eoiinty,  province, 
mill  tliiit  very  f(nv  indeed  extend  it 
iiii|iiiriiiilly  to  till!  wliide  coniiimnity. 
N"w,  Kiiint  but  this  truth  and  tlie 
i|iii'Stiiiii  is  deel(l(!d.  If  a  nmjority 
an'  laiiablo  of  prefer  'inn  their  own 
priv.'iie  iiiirrcsts  or  that  of  th.'ir 
fiiiiiilii's,  lountieH,  and  party,  to  that 
(if  till'  iialiou  eolleetively,  some  pro- 
vision niust  lie  made  in  tho  Oinsiiiii- 
tieu  in  favor  of  juatiee,  to  eonipd  nil 
til  respect  tlie  common  rlKht,  the 
IMililic  «(i(k1.  the  universal  law  in  pre- 
fcreiiic  to  all  private  and  partial  con- 
siiliTiitiuns." 

"U£  all  poasiblo  forms  of  govern- 


ment a  Hovorelgnty  in  one  assembly, 
fiuccesHively  cliosi'ii  by  the  pe(i|ile,  is, 
lierhaps,  the  best  calculateil  to  facili- 
tate thi!  unitilleallon  of  self  love,  and 
tho  pursuit  of  the  private  interest  of 
a  few  individuals.  A  few  eminent, 
conspicuous  characters  will  bo  con- 
tinued in  their  seats  in  tlio  sovereijiii 
assembly  from  one  election  to  anot  her, 
whatever  cliunncs  are  iiiado  in  tlie 
S(»ats  around  them.  Uy  superior  art, 
address,  and  opulence,  by  more  splen- 
did bir'uli,  repiiti.tions,  and  connec- 
tions thoy  will  lie  able  to  intripiiii' 
with  their  people  ;iiid  their  leaders 
out  of  iliiors,  until  they  wormout  iiiosl 
(if  their  oi>poscrs  and  introduce  tlieir 
friends.  To  this  end  they  will  bestow 
all  olll.'i's,  contracts,  privileges  in  (  oni- 
nierco  and  ollior  emoluments  on  the 
latter,  and  thoir  conuectioiis."  Ad- 
ams, DefiMico  of  Amci^c;'!  Constitu- 
tions, vol,  ill.  Letter  0,  pp.  21."i  :2l(i. 
See  North  Allie  lean  lleview,  Oct., 
1H27,  p.  '2<i:t :  Stoi,' on  the  Constitution, 
Gill  ed,,  8552. 


3o4 


TMK    HKiHT    OF    Sl'FFUACE. 


[I'llAI'.  VI. 


;i  i))ll-t;ix  is  paid  by  tlu;  luauagurs  of  the  [lolitical  purtic;,  it 
may  I).'  that  wliere  tlu;  majority  is  entirely  illiterate,  an  iiiutii- 
tioiial  (|ualiiicatinri  is  essential.  lUit  every  .such  caae  hitliertd  lias 
been  accdnipaiiied  bv  injusliee  toward  those  who  were  disfran- 
chise;!. Anil  whiirevei'  the  illiterat(!  have  been  few,  as  in  the 
Northern  States  of  tue  Union,  no  harm  to  the  rest  can  he  |n'r- 
ceived  to  have  followed  tlieiv  adnussion  to  the  iMLfht  of  sulfnijj;!', 
while  they  have  l)eiieliled  by  the  ballot  us  a  means  of  seif-pjcjtt'c- 
tion.  As  the  eondilion  of  the  human  raec!  adviinces,  there  can  Iw 
no  do\il)t  that  universal  manhood  snffruf,''e  will  eventually  spread 
thronj^hout  the  civilized  world."  Whether  it  will  he  aceonijiaiiicil 
by  the  admission  of  women  to  the  fianehise  is  a  ques'.ioii,  an 
answer  to  wliich  seems  premature. 


n  Tlif  Ih'.-it  st:n(ii'Hli(in  of  universal 
niaiiliooil  sufl'nigo  that  I  liuvo  foiuul 
was  in  llio  ooiuicil  of  olTicoip  of  Croi" 
well's  army,  when  a  form  of  govorn- 
inont  was  iircpared  liy  tliom.  (Seo 
tlio  Clarlic  PaiicTri,  vol.  1,  ]ip.  307-330. 


It  sooms  U>  Iiavo  boc^n  llr.st  ostalili^liivl 
by  tho  Vermont  Con.stitntiou  of  1777. 
It  was  llr^t  introdnccil  iu  Eumpi;  liy 
the  National  Convention.  (Oiiistiiu. 
tion  (hi  21  .Tniii  1703;  Hello,  Cousii- 
tution.s  do  la  France.) 


CHAPTER  VTT. 

NECESSARY    QUALIFICATIONS   FOR   SEXATORS  AND   REP- 
RESENT ATI  Vi;s. 


!<  <>(),   ('oiistitiitioiiiil   I'l'ovisuMis  coiii-criiiii^''  (jiiiilit'ic'iitioiis  of 
!>I<Miil>('rs  of  C'<»iiiri'<''<i<' 


Tmk 


a,  rli 


UlSf  ill  thi;  (  'iilislilutidi 


1  ]ii'()viili'S  tliat  — 


)ii  slinll  lie  :i  Urpi'i'seiitiilivc  wiio  sli;ill  not  have  attniiuHl  to  tl:e 


)f  twi'iitv-tive  Yi 


liei'ii  scviMi  Years  a  Citizi'ii  of  tho  I  iiitcd 


ami  wlio  shall  not.  wlioii  ck'cti'il.  lio  an  Inlialiilant  of  that  Slate 


Sl^li 


in  which  he  shall  bo  chosen 


ll  seems  more  convcuieiil  to  cuiisliler  tliu  (|Ualilii.iitii)iKs  of  a  ii'jhi  - 
si'iitative  iiiul  of  !•-  senator  toj^'etiior.     A  suhsfiiueiit  clause  piovidrs 
lliat  — 
"  no  Terson  shall  lie  ft  Senator  who  shall  not  have  altaiiieil  to  the  Aue 


iif  Ihirlv  Years,  aiul 


Years  a  ('ill/en  of  the  I'niteil   Stal( 


Mild  who 
wiiieh  he 

A  slill  hit 


shall  not,  ^\heii  elected,    lie  an    inlialiilant  of  that  Stale  for 
~liiill  lie  chosen."  '' 


er  liiovisio 


till'  I'liited   Stall 
eniitiiuiaiicc  in 


II  is  that  '•  no  P 
dial! 


he  a  nieiiilH 


I'l'soii  lioldiiie;  any  oiiire  under 
r  of    eitlier   1 1 


oiise  tliirnie'  liiS 


oni^ 


'I'his  la.-^t  idatise  will  lit!  disi'ussed  later 


in  the  s("dioii  oil  (lis([iialilications  from  nlliee.'*  Tlie  Fourteciitli 
Aiiiriidnieiit  [irovides  ttiat  "  no  jieisou  sliall  lie  a  Sen. .tor  or  iie;;- 
iTseiiiiiiivi' ill  ( 'oiisji't'ss.  or  eleetoi' of  President  and  \'iei'-l*residrnl. 


i.r  ho 


id 


any 


ol'lice,  civil  oi-  niililai'v,  under  tin;  I'liiteil  Stall 


s.  or 


iiir 


iier  nl 


ier  any  State,  wiio,  liavini;- 


revioiislv 


taki 


itl 


Ken  au  oatli  as  a  iiieni- 


( 


oiii'iess.  or  as   an   ollieer  o 


Hi 


if   the  I'liiteil    Stat 


es.  or  as  a 


'ii'iiihi'i'  of  any  Stale   ! 
ollieer  of  ailv    State,    t 


eo-islaliire,  or  as   the  executive  or  jt 


dieial 


up 


o    SUIIlio 


irt  the  ( 'oiistitiilioa  of  the  United 


Sl'O,  1  CoiisliliitiDii,  Artir 


I,  Se 


i  Cimstihilion.  Articli'l,  Seiti 


ti'iii 'J.     Forllii'iuovisionsdl' the  Coil-  ^  Cimstilutioii.  Article  I,  Section  11. 


f'lli'nitc  Coiisiilulioii  ou  th'»  subject, 


HI-''  dK/ini, 


§  37 


355 


Infra. 


:5o6 


QUALII'-ir.VTIONS    OF    CONCKKSSMKX.  [('MAP.  VU. 


States,  shiill  have  eiigufijcd  in  insurrection  or  rebellion  ajraiiist  ilie 
same,  or  f^^ivcu  aid  or  comfort  to  tlie  enemies  thereof.  !hit  Cnii- 
gre.-s  iMMy  i)y  a  vote  of  t\\o-ihir(is  of  eacli  House  remove  sucii  dis- 
ability."''  Nearly  all  the  disalrilities  of  tlie  .snrvivor.s  of  tlic  Civil 
War  have  been  removed.  While  they  were  in  force,  it  \vi>,s  liekl 
that  the  election  to  the  House  or  Senate  of  a  [)ersou  laborinjjf  under 
a  disability  imposed  by  the  Fourteenth  Amendment  was  voidable, 
not  void,  and  tiiat  a  sulHeiinent  icmoval  of  the  disability  cutitkd 
him  to  his  seat.*^ 

i?  <»1.    History  of  Provisions  coMccriiiii^  Qiialifleatioiis  ol   ^rcin- 
Ix'rs  of  Coiitfri'ss. 

In  1787,  the  law  nf  I".ni,dand  required,  as  it  does  still,  that  no  jht- 
son  should  sit  in  either  house  of  Parliament  until  he  luiil  attaiiieil 


lis  maj(U'ily 


but  t\ 


wo  of  the  trn'alest  leaders 


tiie  House  of  (' 


one 


-Siiaftesburvand  Fox  -  took  theii' scats  when  under  twenty- 
id  in  earlier  linu's  tlic  lustoni  w.is  as  common  as  the  appoint- 
ment of  minors  to  high  military  ollice.'  The  other  (]ualitiiatioiiN 
for  membership  in  tlie  1  louse  ot  ( '(unmous,  at  that  time,  were,  besides 
citizfiisiiip  and  certain  negative  dis([iialilications  imposed  liy  law. 


tiie  owuerslnii  o 


.f 


frecdiold  with  an  estate  worth  at  least  tiiiec 
dtl 


hundi'cd  pounds  a  year,  with  exceptions  in  favor  of  the  eldest  sons 


le  unixersitics.- 


of   .    TIN  and  intiubers  of  tl 

c'UHtont  b»  c  ircunivent  tiic  liw  bv  the  t 


It  was.  however,  tlie 
ransfci'  of  a  small   piece  cf 


pfiipertj'  fniui  one  mendu'r  to  another,  so  as  to  (|ualify  each  to  take 
tlic  neeesH...  .  ■  itl./'  'I"hc  requisite  (pialitications  for  memlierslnp  in 
ilir  tlifferent  coioniitl  and  early  Stati'  assemblies  were  vaiiotis.  ;il- 
thousfh  usually  tlie  right  of  meiiiberslii[i  wius  eouliiu'd  to  frcchnhl- 
ers  or  the  owners  of  a  specified  amount  of  property,  or  taxiiiiyers; 
and  JM-.fijadonally  higlifr  (lualilications  weie  rcrpiired  for  meiiibei- 


■■'  FourtoiMrtiH.  AiiiiMiilR«'nt ,  Spctioii  H. 

»  H.  B.  ItiillerVi  las.',  Hmi-'  Cou- 
ii'sti'il  EIiM'tloii  Ca«<s.  1855- IK7t,  p. 
4ti4 ;  YuiintrV  ♦'km-,  iliiil.  ;  Utinwiiu  r. 
Alilintt.  TitflV  S.'iiiile  Eli'dien  Cimes, 
■  •'.i!iiiiu«rl  liT  Furl)i'r.  )i|i  :|1M),  :i(15. 

K  <il.  >  Hhaftwliiirv  «at  in  I'lii'liH- 
iiietit  when  imly  iiiiiett'Hn  Traill's 
Shaft  ""liiiry.  !<•  IM.)     Fox  ot  llic  Hanio 


iige.  Ill  onw  of  tho  Parliaments  of 
Jain.»»  I  tli«r<'  »-io  forty  ini'iiitn'i''- 
who  wi'i-i"  iindt'f  uiii\  soni'>  not  men' 
than  sixtf.t  Traiil's  Shnfteslmry.  p- 
IH,  noti'  .     iSvi-  infri.  note  (>. 

'^  Uliick.stoue'H  C'.iiiimoutarli's,  vol. 
i,  p.  17il. 

»  May,  Ciiustilutional  Hisloiy.vol.i. 


<lil.] 


CON'STITUTIOXAL    I'ltOVISIONS. 


3-,7 


^^hip  ill  tlio  upper  tliaii  tlio  lower  lioiisc.''  In  iill  of  tliciii,  tlu-  liiw 
Mipiircil  that  eiicli  meiiilicr  .sliould  lie  (if  full  ■dij;v.  ;  liul  this  rcfpiiie- 
iiniit  there,  as  in  Eiighmd,  was  sdinetiiues  waived.  In  some, 
cleii^viiieu  were  disqualified,  —  an  injustice  wliicli  tiie  Federal 
('(invention  wished  not  to  extend  to  Coiijrress.  In  South  Caro- 
liiia  till  1700,  and  in  New  Hampshire,  until  1877,  all  who  did  not 
mllieie  to  the  Protestant  religion  were  exeluded.''  In  all,  the  law 
ic(juired  that  each  member  should  be  of  full  age;  liut  this  require- 
iiicnt  there,  as  in  I'^ngland,  was  soiiietiines  waived." 

'Hie  provisions  eoneerning  the  requisite  age  for  senators  and 
representatives  were  adopted  with  little  discussion  in  the  Federal 
('(m\('iition.  The  evitleiit  ulijeet  was  to  secure  suilieieiit  maturity 
(if  iiidgment;  and  greater  age  was  required  for  a  senator  than  for 
11  representative,  on  account  of  the  greater  imiiortanee  of  the  du- 
ties (if  the  former  ortiee.  The  only  division  upon  this  point  in 
the  Convention  was  upon  a  motion  to  disqualify  fr(.'m  membership 
ill  the  House  all  luider  twenty-five  years  of  age.  —  the  jieriod  of 
iiiiiKirity  and  of  disqualification  from  the  right  of  suffrage  usually 


*  I'lKirc's  Cliartors  and  Oonstilu- 
ti'.iLs.  pasftim. 

'•  Ilii.l.,  pp.  1280,  1298,  1309,  ir>2;j. 

o  Tlif  fdlliiwiiiK  incident  i.s  dc- 
•■^I'lilii'd  in  Waclicld's  Kcudirljy  Rc'- 
soliitiims  (if  1798,  pp.  .')2-.'):t :  Jolin 
linckcnridKi'  "was  aliout  to  set  out 
fniiii  Imnip  fur  liis  tlilrd  y<nT  nt  col- 
li';;.' when  lie  was  oleeled  to  repn'H(?nt 
his  ciiiinty  in  tho  Honsc  of  DelegatOH. 
Tliis  was  in  the  autumn  of  1780,  when 
111'  wa.H  only  niuoleen  years  of  org. 
He  lidil  made  no  eanvaHB,  and  was  in 
Iill  line  scn.so  a  candidate.  His  elec- 
limi  was  the  result  of  one  of  those 
sili'nl  movements  when  men  are 
lii'eiiKlil.  iiiider  the  pressure  of  events, 
111  select  those  who  eiiii  liest  represent 
llii'iii.  williuut  repinl  to  the  mucli 
ll|■|■■,^.c(l  claims  of  offlce  seeiiers.  No 
etio  could  liavo  lieen  more  Mirprlsed 
III  liJHclecti'iu  than  was  John  Breckeii- 
riilue  hiinscM',  hut  he  clieerfully  under- 
tiielt  'he  taslj  imposed  upon  him,  and 


set  out  for  Williamslnirfch.  Tho 
Hiiise  of  Delepiates,  however,  set 
aside  tho  eliM'tion  ou  aecoiint  of  his 
youlli,  feelin;^,  uo  doulit.  that  the 
choice  was  holli  unpnH'edeiited  niid 
out  of  place  in  a  time  so  full  of  diiiiRpr 
and  dcmaniliiiK  the  iimsl  fiii-si^^htod 
(■ouiisels.  Hut  the  hardy  frontiersmen 
had  not  made  their  iluiice  without 
lieiim  oouvineed  of  its  wisdom,  and 
promptly  re  eliM'led  Mr.  UreckenridKe. 
The  House  ai^aiu  set  the  election 
aside,  and  aRiiin  tho  electors  cast 
their  Imllot  as  hefore,  and  tliis  tiino 
the  election  was  aei|iii('seed  in,  and 
the  yoiiiig  student  left  his  academy 
pui'siiils  ill  the  one  part  of  the  town, 
and  took  his  scat  in  the  council  hall 
at  tlie  oilier." 

Henry  Clay  was  elected  to  the  Sen- 
ate of  the  I'liiled  Stales,  look  his  seat 
and  oecupi(>d  an  inlliiciitial  position 
there  before  he  was  thirty.  iShurz, 
Clay,  vol.  I,  (ip.  38-39.) 


358 


QrALIFICATIONS    f)K   CONGRESSMEN.         [CHAP.  VII. 


imposcil  ill  ODuntrics  tliiit  luive  adopted  the  system  of  jiiri.s[>rii- 
di'Mce  founded  on  the  civil  law.  which  is  less  lihcral  than  tiie  ceiii- 
iiiDU  law  to  youth."  Some  dehate  took  place  upon  the  (incstioii  us 
to  till!  Icnufth  of  citizenship  wiiich  siumld  he  ie([uisite.  In  the 
report  of  the  conunittee  of  detail,  a  citizeiisliip  of  four  years  for 
the  Senate  and  three  years  for  the  House  was  all  tliat  was  re- 
quired." Su1)sequent  ehauffes  were  made  after  some  dehate,  a 
minority  fearintr  lest  the  enlarj^ed  restriction  mit^ht  disconra<;i'  im- 
migration.^ Before  the  reference  of  the  original  resolutions  to 
the  committee  of  detail,  attempts  were  made  to  distiualify  pcii- 
sionei's  and  "persons  having  unsettled  accounts  with,  or  heing  iii- 
dehted  to,  the  United  States;"  hut  Gouverneur  Morris  slioucil 
that  this  clause  would  empower  the  oflicers  of  the  treasury, 
1)V  delaying  settlements,  to  disciualify  all  wiio  ha<l  previouslv 
heen  in  ollice,  and  that  all  importing  merchants  wen;  coiitimi- 
ally  in  dcht  to  the  United  States.  So  the  pro[)ositioiis  were 
defeated  hy  large  majorities.'" 


'"Col.  Mason  movcil  to  insert 
'twenty-live  years  of  iige  ns  n  iiiiaiili- 
cation  for  tlio  nmiiilierrt  of  tlio  tirst 
br.iniii.'  Ho  Ihoiii^lit  it  absurd  that  a 
man  to-day  slionld  not  lie  peradttcd 
by  tlie  Ia,w  (n  lualie  a  bai;,'ain  for 
liinisclf,  and  to-niorniw  slmiiM  lie 
authorized  to  nianaKo  the  alTaii'.sof  a 
fjreai  nation.  It  waw  the  more  extia- 
ordiiiiirv.  as  every  man  carried  witli 
luni,  in  liis  own  e.xperlenee  u  scale 
tor  measoriuf;  thi'  delicien<'y  if  .voaMy 
[lolilieians;  since  lio  would,  if  intor- 
ri-.jaled,  b(>  oldlj^ed  to  declare  that 
his  politieal  opinions  at  the  asj(!  of 
tweiity-oue  were  too  crude  and  errone- 
ous to  merit  an  inlluence  on  puhlie 
nii'asires.  It  had  been  said,  that 
CoiinresH  had  proved  a  Kood  school 
for  our  yoiinti  men.  It  niinht,  be  so, 
for  anylhin;;  he  knew;  but  if  it  were, 
he  chose  ihat  they  should  lieur  the 
expi  nse  of  tlieir  own  education." 
"Mr.  Wilson  was  against  abr'IdKitit? 
the  rights  of  election  in  any  shape. 
It  was  the  same  thing  whether  this 


were  done  by  di'^qiialifyinti  theohjcots 
of  choice,  or  the  persons  choosing. 
Tlio  motion  tended  to  damp  the  cIToils 
of  genius  and  of  laudable  aniliilion. 
Tlicre  was  710  more  reason  for  iuca- 
pacilaliof^  youth  than  (u/r.  where  the 
requisite  f|ualillcations  were  fouiul. 
Many  instances  miHlit  be  nientidied 
of  slj,'nal  services,  rendered  In  hij;h 
slation.s  to  the  puliiie,  before  tlio  atto 
of  twent,v-li\e.  The  present  Mr.  P"t 
and  Lord  BoliiiKbroke  were  slriiiiiig 
instances.  t)n  the  question  fi  r  i..- 
serllufj  'twenty-llvo  y-irs  of  n;'c.' 
C  iniiectii'Ut,  New  Jersey,  Deiawi  ro, 
Maryland,   Virginia,   NortI  "iia, 

South  Carolina,  ay,  7  ;  >r  seus, 

Pennsylvania,  Georgia,  .  i);  N'-'V 
Y(U-k,  dividi'd."  iM:io.son  I'ap  rs 
Elliot's  Deb.'vtes,  2d  od.,  \oi.  v,  pp. 
'228  'Jan.  ■) 

«  Madison  I'apers,  Elliot's  DebaKis, 
2d  ed.,  vol.  v,  p.  ;t77. 

9  Ibid.,  pp.  :ts;),  :!;is-ioi. 
1"  Ibid.,  pp.  370-371. 


§G1.]  PROCEEDINGS   IN    CONVENTION.  359 

III  the  report  by  tlie  coininittt'e  of  dftnil,  it  was  required  that  a 
nicmliiT  of  oiR'h  house  liould  lu'  a  resident  of  tiie  State  wliich  he 
i([. resented."  The  ehaii^e  from  I'esideut  to  iiihahitaut  was  made 
liv  uiiiuiinuius  consent  at  the  motion  of  Roger  Slierman,  seconded 
liv  Madison,  upon  tlie  ground  tiiat  inliabitaney  was  nuire  easily 
(litcrmined  than  residence. ^^  The  last  resolution  referred  to  this 
coiamittee  of  detail  was  :  — 

"  IJesolvcd,  That  it  be  an  instruetion  to  the  commitliH'  to  wlioin  were 
nfcnt'd  llie  proceedinpfs  of  the  Convention  for  the  estiiMisliineiit  of  a 
iiiiliiiiial  jiovernmeiit,  to  receive  a  clause,  or  ehuises,  rt'iiiiiriiej;  certain 
i|ii;ilil;<'Mli()ns  of  property  .'uid  citizeiisiiip  in  the  I'nited  Slates  for  execu- 
livr  till'  jmlieiary,  and  tiie  membera  of  hoth  hranches  of  the  leiiisla- 
Ui!"  nf  the  I'.Mted  States." 

The  report  ot  this  committee  pro\ideil  that  "  the  IcLrislature  of 
the  I'nited  States  shall  have  authority  to  establish  such  niiiform 
i|iialilications  of  ti.e  members  of  each  House,  with  legard  to 
,'in|ierty,  as  to  the  legislature  shall  seem  expedient."'''  'l"be 
cxiilanation  of  this  part  of  the  rejiort,  as  given  by  a  memlu'r  of 
the  committee,  is  the  best  statement  of  the  objections  to  such  a 
iiualilication :  — 

"  The  coMunittee  had  reported  no  qualifications,  liceaiise  they  could 
imt  a^'iee  among  themselves,  lieinii;  einhiirrassed  liy  tlio  danger,  on  one 
siilo,  of  dis()leasing  the  people  liy  making  tliem  too  liiiili,  aii<l  on  tiie 
(illii'v  of  rendering  them  nngatory  hy  niaiving  tiicni  too  low."  " 

l'|ion  the  consideration  of  the  report,  Pinckney  moved  that 
the  ( 'oiislilutioii  should  contain  a  provision  rcijuiring  a  property 
i|ii-ilitication  foi'  the  President,  jnilges  ami  membiTs  ot  Congros. 


■I  Mai|i>onrii|M.|-s,  Klliol's  Di'batos, 
'2'l.'.|..  vol.  V,  p.  ;i77. 

'-"Mr.  Slii'riiic'iii  movcil  to  siriUo 
"lit  till'  woril  '  ri'siili'iil  '  and  insert 
till'  word  '  liilialiilMiil,'  ns  li'ss  li.iMn 
III  inisi-oii.striH'tioii.  Mr.  Madison 
^I'lniiilod  llie  inoiion.  Bolli  were 
viiu'iii',  tint  till'  latter  least  so  in  eoni- 
iiiHii  aeeeptation.  iiiid  wonld  not  e.\- 
clmle  persons  absent  oeeasionally,  for 
n  ciiiiBldi'rablo  tinio.  on  publie  or 
inivalebusini'ss.     tlrent  lU-puUs  had 


been  raised  in  Virt;liila  eoneerning 
tlie  nieiinini;  ot  resiilenee  as  a  i|nnlill- 
cationof  reprrsenlalives,  which  were 

detei'iniiieil    mure    a ii'illnn    to    tlio 

affeetiiMi  or  ilisliki.  lo  the  man  in 
question  than  lo  any  lixed  interprp- 
lation  of  th"  word."  Madi.son  Pajiers, 
Elliot's  Debates,  ad  ed.,  vol.  v,  p. 
3H0;  .see  also  pp.  IWO  anil  101. 

11  Ibid.,  pp.  :t7<;  378. 

"  Kuliodb'o ;  Ibid.,  p.  403. 


;{t;o 


QUALIFICATION"     OF   CONOUESSMKN.         [cilA  1'.  \  U. 


•'  Were  he  to  tix  the  (iiianlity  of  property  which  should  bo  re<niirt'd, 
he  slioiild  not  think  of  less  tluiu  oue  hundred  thoiisiuid  dolUirs  for  the 
I'n'sident,  U:\\{  of  tliiit  sum  for  eiieh  of  the  judfies,  uud  in  like  i)r()por- 
tion  for  the  members  of  the  national  legislature.  lie  would,  howovcr, 
leave  the  sums  in  blank."  " 

"  Dr.  Franklin  expressed  his  dislike  to  everything  that  tended  to  de- 
base the  s'lirit  of  the  eonnnon  people.  If  iionesty  was  often  the  e(im- 
paiiiou  i)f  wealth,  and  if  jioverty  was  e.xposed  to  peculiar  temptation, 
it  was  not  less  true  that  the  possession  of  property  increased  the  (hsire 
for  more  property.  Some  of  the  greatest  rogues  he  was  ever  acipiainldl 
with  were  the  richest  rogU(^s.  We  should  remember  the  character  wniih 
the  .Scripture  retiuires  in  rulers,  that  they  sliould  be  men  haling  covel- 
ousness.  This  Constitution  will  be  nuich  read  and  attended  to  in  I'.ii- 
rope ;  and  if  it  should  betray  a  great  partiality  to  the  rich,  will  not  only 
hurt  us  in  the  esteem  of  the  most  liberal  and  enlightened  men  tiiert. 
but  discourage  the  counnon  people  from  removing  to  this  comitiy. 
The  motion  of  Mr.  I'inckncy  was  rejected  by  so  general  a  no  that  tliu 
States  were  not  called."  '" 

"  Mr.  IMadison  was  op])osed  to  the  section,  as  vesting  an  inijinipcr 
and  dangerous  power  in  the  legislature.  The  (pialilications  of  electois 
and  elected  weie  fundamental  articles  in  a  republican  government,  ami 
ought  to  bo  fixed  by  the  Constitution.  If  the  legislature  could  regu- 
late those  of  either,  it  can  by  degrees  pervert  the  Constitution."'  He 
referred  also  to  the  abuses  in  the  acts  of  Parliament  regulating  the 
qualifications  of  mendiers.  "They  had  made  the  changes,  in  Imlh 
eases,  subservient  to  their  own  views  or  U>  the  views  of  political  iunl 
religious  parties."  " 

'l"lu'  whole  Sfctidu  was  tlirowu  out  liy  the  vote  of  seven  Stales 
to  tliree,"*  Mild  the  Convention  [iro(  I'cdcd  to  fix  liie  leiiglii  ol  riti- 
zenship  as  previously  suited. 

I  iiiii3  lias  provt'd  the  wisdom  id  tiiis  proceeding.  It  lias  lieeii 
i'oiiiid  thai  the  [leopli' (  111  pKiteel  tliemselvcs,  iiiul  tluit  there  is 
ini  heliidit  ill  inipo-^ing  ollS^ilel(^s  tn  llieii  cluiice.  I'ropt'lty  ilt'iili- 
lieatioiis  lor  ineniliership  in  their  legislatures  have  now  liccn  idml- 
islicd  ill  all  the  I'Mted  St;  'os,aiHl  ii.su.        rcHldi'iice  foni  H|UMilieil 


15  M.'i.lls,,iiriilieis,  Klljoi'   D.'biili's, 

Sit  <h|  ,  \.'l.  v,  p.  iii;i. 

10  lliUI. 

"  It.l.k ,  i-.  i'H. 

w  Th«>  i|iioHtlou  was  whnthor  llioy 
nfcoiilil   iigroo    to   the    soctiiiii  :    New 


Haiiipsliiio,  Muss  11  ||l|^eH'*.  (li'umin. 
ii.v.  ;i;  riiniineili  111,  Ntiwilmwiy,  IViiii- 
bvImiiiiii,  Miir.vliind,  VlrRiiiiii,  Ni'iUi 
Ciirolinu,  South  CiiroUua,  no,  T.  {IM., 
p.  1(11.  J 


il.] 


l'I»)(,"EEI)IN(;S    IN    C'ONVKNTION. 


861 


liiiii'  witliin  the  Statu  or  distiict,  and  tlio  age  of  twciity-ono  ycai-s, 
aiv  llu'  solo  (|iialilicatioi'H  i'e([uiit>il  for  iiu'iiiheisliip  in  eitlicr 
llniisr.  Ill  oiiu  State  a  inuniliLT  of  tliu  iijipcr  lioiise  iimst  Ik; 
tlnri\,'''aii(l  in  two  tweiity-fivu  yuais  of  agi!.'-*"  In  Delaware  a  rej)- 
iistiaative  must  be  twenty-four  years  of  ajre.'^'  Some  Statoa 
iiiiike  ollieers  of  the  I'nited  States  and  judicial  or  inunicipal 
(illiicrs  ineligible,^  but  in  most  the  jieoj)le  have  wisely  allowed 
till'  vdUis  of  eaeh  distriet  to  choose  their  reprt'sentatives  in  the 
Ifijishiiure  with  few  restrictions.  It  is  the  constant  jiractiei^  in 
(iivat  Britain  and  France  for  the  constituents  to  choose  represen- 
t.ilivcs  irrespective  of  their  phices  of  residence.  In  the  I'nited 
States  local  prejudice  rarely  [lermits  tin-  in  the  laso  of  memlwrs 
(if  Coiigre.ss  whore  it  is  allowed,  and  it  is  usual  in  State  constitu- 
tidiis  to  forbid  it  in  the  election  of  membeis  of  the  State  legis- 
laiiiiv.  The  former  practice,  bj'  the  broader  choice  which  it 
aflonls,  is  apt  to  secure  the  election  of  abler  men;  but  by  the 
latter  the  representative  is  more  apt  to  be  a(  ijuainted  with  the 
\vi>lies  of  his  constituents  and  to  obey  them.-' 


''■>  New  Jersey  Coustitulion,  Artli'lo 
IV,  S.'i'lioii  2. 

-■'  Illinois  Constitution,  Article  V, 
Sccliou  ;t,  iind  Noi'lh  Uakola  Cousti- 
luUori,  Aiticlo  II,  Section  '2S. 

■'  Koliiwaro  t'oiistilulion.  Article II. 

'--  Xow  Yorlc,  Article  III,  SeclioM  H; 
Floriila,  Article  III,  Kecliou  7,  Illi- 
ii'ii.-,  Article  V,  heetion  ;) ;  Iowa,  Arli- 
li.'  Ill,  Section  (!.  In  the  KcpiiliUc 
of  Hawaii,  "In  order  to  lio  cli- 
gilli'  10  election  as  a  senator,  a 
I'l'isnu  hliall  bo  a  male  cltUen  of  the 
Iti'|.iililie;  have  attained  the  a^i'  of 
tliirty  years;  h\\  alilo  inideislaiidlni.'ly 
iiiHiM>nK,  v\*«d,  nud  wilto  the  Kujillsh 
e\  \Kn  lliiwaiiau  language;  have 
n"»i.led  Id  \\w  Hawaiian  Islands  uot 
I''  Hum  llireo  years;  bo  tho  owner, 
in  Ills  own  rlnht,  of  proiierty  in  tho 
K>'|  iii'lie  of  the  xnhie  ol'  not  less  than 
I liree  thousand  dollars  over  uud  above 


nil  liii'iiinlininces;  or  have  been  in 
tile  receipt  of  a  money  incomi'  of  not 
less  than  twelve  hundied  dollars 
during  I  ho  year  iinmedintelypriH-ediug 
tiie  (late  of  tho  election,  for  the  proof 
of  which  li(!  may  bo  re(|uir(  (I  to  pro- 
dui'c  original  aecounts  of  the  receipt 
of  such  ini'ome"  (  Article  Otjl. 

Similiar  <iualilli-aticins  as  to  ciiizon- 
ship,  ]irovious  resideiuMs  and  eduou- 
tiou  are  reiiuired  of  representatives. 
Tho  r(M|uisite  ago  for  a  represeicativo 
is  twenty-live  yoai-s ;  and  tlio  piwperly 
(lualilication,  oni^  thousand  dwUars 
net  of  |irinelpal.  or  an  ineome  for  tho 
past  twelve  months  of  six  hundred 
dollars  (Article  r>H). 

'•'■'  Il  is  hard  to  bellcvo  that  a  s^HHS-h 
like  ihal  of  Burke  to  the  oloctora  of 
Bristol  could  have  lioen  made  by  a 
candidate  for  Congress  in  the  United 
State---, 


8i;2 


QI'ALU'ICATIDN'S    l)V   COXORESSMKN.         [('MAP.  VII. 


v,  i'l'-i.  Congressional  Decisions  on  Qualifientions  of  Senators  and 

l{<'l>ros<>ntativ4>s. 

Tlie  wf)i(l  •' iiiliahitiuit"  has  a  different  meaning  from  "resi- 
dent." IJesidciu'o  implies  permanency,  or  at  least  an  intention  to 
remain.  Hahitancy  may  bo  temporary.  A  man's  resid'.iii'u  is 
often  a  l(^gal  conclusion  from  statements  showing  his  inloiilidii. 
J  lahitancy  is  a  pliysical  fact  ■which  may  be  proved  by  eye-witm.sses.' 
It  was  held  by  the  Senate  tliat  an  army  oilicer  stationed  in  .Missis- 
sippi might  be  elected  senator  from  that  State  if  he  had  announctil 
Ills  intention  to  permanently  reside  there,  although  he  was  iiiii,'i- 
nally  aiipointed  from  another  State.^  It  was  held  by  the  ilousi;  (if 
Ilepresentatives  that  a  citizen  of  Massachusetts  who  was  a  clerk  in 
the  Department  of  State  at  Washington,  was  not  an  inhabitant  of 
any  State,  and  was  consequently  ineligible  to  a  seat  in  Congress;^ 
but  that  a  minister  of  the  United  States,  while  diseliarging  his 
oUicial  functions  at  a  foreign  court,  did  not  cease  to  be  an  in- 
habitant of  the  State  from  which  he  was  ajipointed,  and  miglil  be 
elected  to  Congress.''  In  the  cases  of  Albert  (iallatin,  aftcrwuid 
Secretary  of  the  Treasury,''  and  .lames  Shields,"  of  Illinois,  the  Sen- 
ate refused  adnussioii  to  the  persons  elected,  upon  the  ground  tiwt 


*;  02.  '  See  the  remiirks  of  lliuiison 
inthe  Feileriil  Convention,  «»;»n(,  §f!l, 
note  12.  McCrary  wiy.s,  in  McCrary 
oil  'E!.,tious  (3ril  ed.),  §  2S!t :  "It 
would  s("eni  tluit  tlii)  frnniers  of  tlio 
Conslilutioii  wore  impresseil  wltti  a 
tleep  sense  of  llie  iinporlanco  of  an 
ai'tual  buna  fide  ii>siilenceot  tlio  repre- 
sentative ainoiijj  tlie  constituency, — 
a  resl(len('0  in  tlio  son.so  of  actual 
living  among  tlieni  and  cominiiigliuB 
witli  tlioMi,  — and  therefore  employed 
tlie  term  inhabitant  in  the  seiiH(>  of 
living  or  ahidiiiH,  anil  not  in  the  sense 
of  technical  residence." 

'■^  ('nso  of  Adelhort  Ames,  Tafi's 
Senate  Elei-tion  Ca.ses,  continued  by 
Furber,  p.  27!». 

»  Eleelor.s  v.  Hniley,  t'l.  A  Hall,  411. 

*  Case  of  .John  Forsyth  of  Georgia, 
CI.  &.  Hall,  497.  McCrary  says  of  this 
case,  in  MoCrary  on  Elections  (3d  ed.), 


§  200:  "The  foriMRn  representalivo 
carrii.'s  with  him  the  Bovcrei^july  ot 
the  Kovcrumeut  to  wliich  he  beloii;;s; 
his  righlsasa  citizen  arc  not  imimlicil 
by  his  absence ;  ciiildrcn  born  in  tln' 
house  he  oceupies  art?  considered  ne 
Ijorii  within  tlie  territory  and  juris- 
dlclion  of  the  {•overnmont  in  whose 
service  he  is;  he  does  not  po.'isoss 
the  capacity,  by  resilience  in  the  for- 
eign country,  to  become  one  of  Its 
citizens,  or  to  lose  ids  allefjiaii^'O  to 
thi>  <'ouiitry  from  which  he  conioa. 
None  of  these  things  attadi  to  those 
perdons  who  are  crajiloyed  in  the 
home  service  of  the  government." 

'  Taft's  Senate  Klc.-lion  Ca.^'es.  ron- 
tinucd  liy  Fnrbcr,  \t.  r,l ;  see  also  bit' 
of  Albert  (Iallatin,  by  Henry  Adnnis, 
pp.  li:»,  120. 

«  Taft's  Senate  Election  Cases,  con- 
tinued l)y  Furber,  ii.  122. 


iu^.] 


CONOKKSSKINAL   DKCISK  INS. 


868 


tiny  li;i(l  not  1)iu!ii  citizens  of  tlie  United  Status  for  tliu  re(iiiisilo 
t( Mil  (if  yi'iirs.  Tliu  L'ertiticatu  of  tlie  jjoviTiior  of  a  Statu  tliat  tlio 
IKi'siin  ek'ctufl  a  senator  is  a  citi/un  tliuiuof  is  sulliciunt  y>r/«('(.^'(/rt(! 
cviiicncu  of  tliu  fact.'  Notwitlistandiii^' tliu  du  ision  in  tliu  I)re(l 
Sciitt  oasi!,'*  it  wiw  lield  tliat  a  jiurson  of  African  lilood  nii!,dit  ho 
clcitcd  to  the  Senate  witliin  less  than  nine  yeais  after  tlie  aihiiilioii 
cf  tlie  i'diu'teentli  Aniendnient.'*  The  States  have  no  imwer  to  add 
to  the  (lualifieations  wliiidi  are  reiinired  for  a  senator  or  re|ii-esenta- 
li\t':  and  all  provisions  in  their  slatnte-s  orconstitntions  which  for- 
liid  a  inenihur  of  the  legislatnru  or  other  Statu  oflieer  from  huing 
cliiisen  senator  have  ))een  rejected  by  the  Senate  as  void.'"     A  seu- 


■<'ii8('of  Stnnloy  Oriswdld.  Tafl's 
Si  iiMlc  Election  Cases,  coutiiiui'd  liy 
I-iiiImm-,  p.  7H. 

►  Prod  Scott  V.  Sandford,  19  How., 
3!i:i. 

■'  lievols'  Caso,  Tnft'a  Senate  Eloc- 
tiiin  Cases,  coutliiuml  l)y  Furber,  ]). 
•274. 

1  ('iisoH  of  Lyman  TrunilmU,  Taft's 
SiMiiitP  EloL'tiou  Cases,  <'oiitiiiiiud  liy 
I'lHliii',  p.  i;)2,  and  Lucas  V.  I''aiilkucr, 
il'iil.,  ('i'2fi.  ,IuiIkc  Story's  cniaineMta 
(111  tliis  point  are  iiistnictivi' :  "A 
qiii'stioii,  however,  lias  lieeii  su^tf^ested 
iipnii  tills  siiljjeet  which  ounht  nol 
t'>  lie  passed  over  without  noUce. 
And  that  is,  wlietlier  tlie  States  can 
tiiipcradd  any  iiualllleatious  to  tliose 
I'l.-^iiilied  liy  the  Constitution  of  the 
liiited  Slates.  Tlie  hiws  of  some  of 
till'  Stales  have  already  rivjuired  that 
tl,>  representative  should  be  a  free- 
li'iMiT,  and  lio  resident  within  the 
ilistriet  for  which  ho  Is  chosen.  If 
a  Slate  iefjialatiire  has  authority  to 
|Ni.->  laws  to  this  effect,  they  may 
ini]  iiisi!  any  ot  her  (luaUllcat  ions  beyond 
th'-ie  jirovided  by  the  Owistitution, 
Imwever  inconvenient,  restrictive,  or 
evi  n  luiscliievoils  they  may  be  to  the 
iiiiii-ests  of  tlio  Union.  Tlie  lettisla- 
tiiie  <if  one  State  may  require  that 
ii'ine  hut  a  Deist,  a  Catholic,  a  I'rotes- 
tiiii,   u,  Calvinist,  or  a   UuiviT.saliBt 


shall  be  a  representative.  TIh^  leijis- 
latiiro  of  another  Stale  may  reiiuire 
that  none  shall  bo  a  representative 
l)ul  a  planter,  a  farmer,  a  mechanic, 
or  a  manufacturer.  It  may  exclude 
merchants  and  divines  and  physicians 
and  lawyers.  .\nother  icRislature 
may  rcijuij'e  a  lii^'h  moneyed  i|ualill- 
cation,  a  freehold  of  ureat  value,  or 
personal  estate  of  Ki'eat  amount.  An- 
other icf^isiature  may  reijiiire  that 
tlie  iiarl.y  slciU  have  been  lorn  and 
alwtiys  liv.'d  in  the  State,  or  district, 
or  that  he  shall  be  an  iiihabilani  of  a 
particular  town  or  city,  free  of  a  cor- 
poration, or  an  eldest  son.  In  short 
there  is  no  end  to  the  varieties  of 
(pialilleatlons  which,  without  insisting 
upon  extravagant  cases,  may  be  im- 
aKiiied.  A  State  may,  with  the  sole 
object  of  dissolving  the  Union,  create 
(|ualillcai  ous  so  liifjh  and  so  sinijiiiar 
that  it  shall  become  impracticalilo  to 
elect  any  reiiresi'nlatlve."  Citin;,'  the 
I'VderalisI,  No.  52;  1  Tucker's  Black 
Conim.,  App.,  21:!. 

"  It  would  seem  liut  fair  reiisoniiii:;, 
upon  the  plainest  principles  of  lutor- 
pretatioii,  that  when  the  Constitution 
established  certain  qualilications  as 
necessary  for  offlce,  it  iiicanl  to  ex- 
clude all  others  as  prereiiuisites. 
From  the  very  nature  of  such  a  pro- 
vision, the  aflirmation  of  those  iiuali- 


S()4  Qr.MJi'icArioNs  (n<'  conuressmen.       [ciiai-.  vii. 

at  >::  "laltoriiiy  under  mental  and  pliysical  debility,  but  not  of  un- 


llrdiioiis  would  Hi'ciii  In  imply  ii  noK"- 
tivo  ef  all  otliert^.  Anil  a  ilcmlil  of 
this  H(irt  rtooiMs  to  have'  pci-vadiMl  tho 
mind  of  a  It'uriiod  comiiieiitatoT'.  A 
power  to  aild  new  iiualincalions  in 
c'lTlaltdy  cipilvali'iit  to  a  powi'r  to 
vary  thoiii.  It  adda  to  llie  ai^grc^ato 
what  changi'H  till'  natiiri'  of  the  formiT 
rciiiiisilos.  Tli(3  HuiiBO  of  Ui'prrscn- 
talivo»  HcnniB  to  have  act  I  npon  this 
intcrpri'tatlon,  and  to  havo  lu'ld  that 
the  Statu  lof^i.-latiircs  have  no  power 
to  prescrllpc  new  <|iialille,itioMs,  un- 
known to  the  Const Itut ion  of  the 
UnitCMl  Stales.  Aeelelirateil  Amei  lean 
stiilesmaii,  however,  with  liis  avowed 
devotion  to  State  power,  has  intiinaled 
a  contrary  doetriin'.  'If,'  says  ho, 
'whenever  the  t'oiistilution  assumes 
a  hIiikIo  power  out  of  many  which 
belong  to  the  winie  Hiiliject,  we  should 
consider  it  as  assumlnK  the  whole,  it 
would  vest  the  Koneral  Koverninenl 
with  u  mass  of  powi'rs  never  contem- 
plated. On  the  contrary,  the  assiimp- 
tlou  of  iiarticiilar  powers  seems  an 
exclusion  of  all  not  asstimed.  'I'his 
roasoninK  appears  to  me  (o  he  sound, 
hut  on  so  recent  a  change  of  view, 
caution  ri'iiuires  us  not  to  be  over- 
eotilldent.'  He  intlniates,  however, 
that  unless  the  case  he  either  clear  or 
urgent,  It  would  he  hetler  to  let  it 
Ho  undlslurl)ed.  It  does  not  seem  to 
have  occurred  to  this  celelirated 
statesman,  that  thi-  wliole  of  this 
reasoiiiuK.  which  isavovvedly  foiinde  I 
upon  tiie  amenilmi'nt  to  the  (!onstilu- 
tion  which  pro\  ides  that  'the  powers 
not  delegated  nor  pnildtiiled  to  the 
Stat(>fl  are  reserved  to  the  Stale  >  re- 
spectively, orlo  the  people,'  ])rocee(la 
upon  a  hasis  which  is  iniipplicahle  t'> 
the  ease.  In  the  llrs;  place,  no  powers 
eoulil  he  reserved  to  tho  Stales,  ex- 
cept those  which  existed  In  tho  States 
before  the  Constitutlou  was  adopted. 


The  ainondmeiit  does  not  prnfeHa, 
and,  indeed,  did  not  intend,  lucoiifur 
on  the  Slales  any  new  powers,  liiil 
merely  lo  reserve  to  them  what  wcro 
not  ciiMceded  to  tho  noveriiiTiiiit  of 
the  t'nion.  Now,  it  may  piopcrly  he 
asked,  whoro  did  Iho  Slates  gel  tho 
power  to  appoint  represenlatives  In 
the  national  government  V"  Clliiig 
Tucker's  lllack  Comm.,  App.,  vol.  I, 
p. '213  ;  JelTerson'sCorresponilence,  vol. 
iv,  pp.  '2;)H,2')',I.  "  Was  it  a  power  tliut 
existed  at  all  before  the  ('imslltiiiion 
was  adopted'  If  derived  from  ilieC.ii. 
stitulion,  must  it  not  be  derived  ex- 
actly imder  the  i|ualilicalioiis  estali- 
lislicd  by  the  {'onstii  ulioii,  and  iiniie 
others?  If  theCotislilutjon  hasili'le. 
galcil  no  powerto  IheStalesloailil  new 
(liuUilic-alions,  how  can  tlii'y  claim  any 
sucli  power  by  the  mere  adoption  of 
that  instrument,  which  they  did  not 
before  possess?  Tho  truth  is,  thiit 
the  Slates  can  e.xercise  uo  powers 
whatsoever  which  exclusively  spriajj 
out  of  the  existence  of  the  naliouiil 
government,  whii'h  the  ('onslilulinu 
does  not  delegate  lo  them.  Tliey 
have  just  as  miu'h  right,  and  no  mure, 
to  prescribe  new  qualilications  fur  ft 
representative,  as  they  have  fur  a 
President.  Each  is  nn  oHlcer  of  the 
Union,  deriving  his  powers  and  quiiU- 
flcalions  from  the  (.'(mstltution,  and 
neither  created  by,  dependent  iilKin, 
nor  controllatile  by  tho  States.  It  is 
no  original  prerogativo  of  tho  Stale 
power  to  appoint  a  ri'presenlalive.  a 
senator,  or  President  for  the  I'liioji. 
Those  olllcers  owe  their  existence  anil 
functions  lo  the  united  voice  of  the 
wliole,  not  of  a  portion  of  the  in'ople. 
Ui'fiire  a  Stale  can  ns.serl  the  rij;lit, 
it  must  show  that  the  Conslitmion 
lias  delegated  and  recognized  it.  No 
State  can  say  that  it  has  reserved 
what  it  never  possessed.     Besiilos, 


§.12. 


CONORKSSIONAL   DECISIONS. 


8(iii!i.l  iiiiiul,"  wiiH  mlnutted."  It  woiilii  i)rol)iil)ly  Ix'  licld  lliat  ii 
liiiialit'  WHS  (li.s<]iiiilili('(l  iis  iiii  exi'u|)tiiiii  iccdLriiizod  hy  llic  cotiiiiinii 
l,m  iiiid  included  in  tlic  Coii.stitiitioii  liy  iiii|)li(';iti()n.''-  'I'liu  i!is- 
(]iiidilii;ation  i)f  the  uaiididati'  witli  tlic  iii<,dicst  iiuinliiT  of  volcx 
(idcs  not  iMititlc  liis  (Miinprtitor  to  ii  scut  in  ( 'onj^Tcss.'''  During 
tlio Civil  War,  and  liuforc  the  adoption  of  the  Fouitocntli  Aincnd- 


Inili'i'inili'iit  of  ttiin,  tlicro  in  niiotlier 
tuiiilaiiii'iiliil  Dlijoi'lion  to  the  rciisou- 
Inu.  Tim  wliolc  scope  of  till' arnuiiK'Ut 
is,  to  show  tliiit  tho  IcglHlnturo  of  tliu 
Slalc  liiis  11  rlnlit  to  [ircrtcribo  new 
(|iiiillliciilloiis.  Now,  if  the  Stiilo  In 
its  |«ilitiiiil  eiipacit.y  tmd  it,  it  woul'l 
iiol  follow  that  the  le^'lslature  jioh- 
W'sseil  it.  Tliiit  Illiist  depend  upon 
till'  innvers  eoiillded  to  the  Slate  le^;ls- 
liilure  liy  its  own  eoiistiliitioii.  A 
Sl:ite.  liiid  the  le^^JHlatiire  of  a  State, 
are  ipiite  dilTereiit  political  lii'innH. 
New  it  would  bo  vory  desinilile  to 
kunw  in  whl<'h  jiart  of  iiny  Slat"'  con- 
Kliliition  this  authority,  exclusively 
of  a  iialloiial  character.  Is  found  del(>- 
(!iileil  to  any  Slato  h'^islalurc.  -Hut 
this  is  not  all.  The  ninendnient  docH 
not  riserve  the  powers  to  the  Slates 
<'X(  hi>ively,  as  political  liodies,  for 
the  liMiHuiifjo  of  tlin  aiiiendnient  is, 
thill  tlin  powers  not  deleKiiled,  etc., 
lire  reserved  to  the  Slati's  or  to  the 
jiiiiplv.  To  justify,  then,  tlie  cxereiso 
el'  I  lie  power  tiy  a  Stale,  it  is  indls- 
IM'iisiiliio  to  tihow  that  II  has  not  beini 
re.aprved  by  the  people  of  tho  Htatc 
Tlio  peojihi  of  tlui  Slate,  by  adoptiiiR 
till' Coiis'iiiitiou,  have  declared  what 
their  will  la,  a'l  to  the  qualllications 
for  o.lii'O.  Ami  here  the  niaxim  if 
ever,  .'Mist  upi  ly,  exprmnio  niiiim  chI 
ejrrluHio 'iltrriiif.  It  niinlil  fiirlher  he 
"iWd,  that  tno  Const  it  111  ion,  bein;? 
the  11, -I  of  the  wliole  ])eiiple  of  the 
riiileil  Slates,  formed  and  fashioned 
accdiiliiig  to  tlioir  own  views,  it  is 
Del  to  lie  assumed,  as  the  basis  of 
any  reasoning,  that  they  liavo  (,'iven 


any  control  over  tho  functionaries 
createil  by  it  to  any  Stale,  lieyoiid 
what  is  found  in  tiie  te.xt  of  I  hi'  in- 
Btrunient.  When  sucli  a  control  i.s 
nsserled,  it  is  matter  of  proof,  imt  of 
iis.suniplii>ii ;  it  is  matter  to  be  cstab- 
lislied,  as  of  ritjhl,  and  not  lo  be  exer- 
rised  by  usurpation,  uiilll  it  is  liis- 
placod.  Tile  burl  lien  of  (iroof  is  on 
the  State,  and  not  on  the  t,'iiverniiient 
of  llie  t'nioii.  The  iinirniatix e  is  lo 
bo  cslabllshed  ;  the  nenaiive  is  not  to 
be  denied,  and  the  denial  taken  fur  a 
concession. 

"Ill  rcRiird  to  the  power  of  a  Statu 
to  prescribe  the  ([unllficalion  of  in- 
habitancy or  rcsldenco  in  a  distrii't, 
as  an  additional  qiialillcation,  there  is 
this  forcible  reason  for  denying!  it, 
that  it  is  undertaiviiiK  lo  act  upon  tlie 
very  (piMlilliation  prescribed  by  the 
Constitution,  as  to  iiiliiibltaney  in  the 
State,  and  abi-idnin;?  its  operation. 
It  is  preiisely  till)  same  oxerejse  uf 
power  on  the  part  of  the  Suites,  as  if 
they  should  iircscribe  that  a  reprc- 
sontativo  should  be  forty  years  or 
age,  and  a  citizen  for  ten  years.  In 
each  case,  the  very  (|ualillcation  fixed 
by  the  Ccinstitution  is  completely 
eviided  and  indirei'tly  abolislied." 
(Story  on  the  ("onslilulion.  ."itii  eil., 
§§  IVil-C.'J'.l.  pp.  ICII- ((•.:!.) 

iiCa,-!'  of  John  M.  Xiles,  Taft's 
Senate  Kleclion  Cases,  contiiiueil  by 
Fiiriier,  p.  I'iO. 

'■-  See  iH/ini,  S  ">.">.  note  '21,  Burgess 
expresses  this  opinion  in  his  Poiitioal 
Sciem-e,  vol.  ii,  p.  ,')2. 

'•'  Infra,  Cli.  XYI. 


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IMAGE  EVALUATION 
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Bi    12.2 


1.1 

1.25 


Ir    140 


2.0 


1.8 


U    11 1.6 


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Corporation 


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QUAMKICATIONS    Ol''   CONOUKSSMKN.        [cilAI'.  \  i!. 


nieiit,  the  House  of  Hejm'seiitiitivts  refusi-d  iulmission  to  iuciiiIkiv 
iilvvl  ulio  had  been  disloyal  to  the  riiion."  The  Senate  at  tiivt 
refused  to  pursue  this  practice,'"  allhoujjh  they  exiielled  M'vcnil 
inend)ei's  for  dislo^-aUy.'"  Finally,  after  the  Fourteenth  Aiiicid- 
nient  had  passed  hotli  houses  of  Congress,  and  been  ratilied  I.y 
three-fourths  of  the  States  there  represented,  but  not  by  tliive- 
fourths  of  the  entire  nund)er,  the  Senate  refused  to  allow  a  Sm- 
ator-eleet  to  take  the  oath,  or  to  hold  a  seat,  upon  the  jrrouiul 
that  he  had  "  voluntarily  given  aid,  counteniinee  and  encounii,'!!- 
nient  tt)  i)ersons  engaged  in  armed  hostility  to  the  United  States." '" 


"  Kontucky  Election Cttsos,  2  Hart., 
327,  ;!i;h;  lluCriu-y  on  ';iccliiins,  S  2Hi. 

'■'  III  tlio  oiiso  of  lionjiimin  StiirU  of 
Orcn'iii,  ngiiinsl  whom  oliaigos  of 
di«l.iyriliy  were  made,  llio  Scnati',  Jan. 
Ill,  l!Sfi2,  resolved  that  tlie  oath  bo 
uol  adnilniKtered  to  him  until  utter 
Iho  re|K)rt  of  the  eoriimitlee  ou  the 
judiciary  U|ioii  his  credentials  ami 
the  rliart?e.s,  whieli  were  referred  to 
lliem.  On  Feb.  7,  1S(!2,  the  followinK 
Toport  \\a»  niado  :  — 

"Tlio  Committee  on  tle>  .ludieiary, 
to  wlmm  were  referred  the  credenllnls 
of  lii'MJanun  Starli,  as  Senator  from 
the  Sial(M)f  Orej^on,  with  tlio  accom- 
panying papers,  have  liad  tlie  same 
undi  r  eofisideratlon,  and,  without 
I'xpres-in.g  any  opiiddn  as  to  <he  elTeet 
of  tlie  paper.s  before  tliein  upon  any 
saliriCiiueht  proceuiliii).;s  in  tlie  case, 
they  rejiort  the  foil.iwi'iij  re;  olutious  : 
ReMolrril,  that  Benjandn  StarU,  of 
Oregon,  appointed  a  Senatin-  of  that 
Stale  by  the  governor  thereof,  ia  en- 
titled to  talie  tlie  ('(institutional  oath 
(d'onii'e."  Tlieresiiliition  wasanionded 
by  addiiij!  tlio  words,  "without  pre- 
judice to  any  Biibseiiuent  proceedinns 
in  the  ease";  and  thus  jiassed  by 
twen'.y-six  yeas  to  nineteen  nays.  Feb. 
27,  1H('>2.  Lyman  Trumbull  niado  a 
stroiiK  minority  report  in  wliich  ho 
argued  that  disloyalty  was  u  diwiuali- 
(Ication  (.see  infra,  note  20).     After  tlio 


oath  had  been  administered  te  St.uk 
the  papers  were  referred  Id  a  sel.rl 
eominittee  who  after  invi-stigation  iv. 
portcil,  April  2,  lHti2,  in  favor  of  IiIh 
o.\pulsion.  On  June  0,  ISiIi,  a  inntiDn 
for  his  expulsion  was  negatived  ;  tlii'ic 
beln;.;  sixleen  yeas  and  tweaty-oiiu 
nays.  (Tafl's  Senate  Kleetion  Cases, 
continued  liy  I'lirber,  pp.  ISC,  20'..i 

1"  Cases  of  James  M.  JIiisoii,  Jolin 
C.  IJreckiiiridge,  Trusten  Tolk,  Waldo 
r.  Jolmson,  Jesso  1).  Hriglitaml  olliers. 
(Ibid.,  pp.  711,  71;),  714,  74ii,  71M.  i 

"  In  the  case  uf  I'liilip  F.  Tlioiaas 
of  Maryland,  Feb.  19,  IHtW,  thefeilow- 
ing  resolution  w,as  adopted  after  a:. 
InvostiKation  by  the  Committeo  on 
tho  Judiciary:  Iiej<olveil,  tlml  riiilip 
F.  Thomas,  having;  voluntarily  ^'ivl'll 
aid,  couiitenancu  and  eiieourajjcineiil 
to  persons  ent;aKed  In  armed  hostility 
to  tho  United  States,  is  not  entitled 
to  have  tlii>  oath  of  olUeo  as  a  Si'natei' 
of  the  Uuiti'd  States  fro:ii  the  St.d''  ef 
Maryland,  or  to  hold  u  seat  in  tliirt 
body  as  such  Senator;  and  that  t'o 
president  pro  Ipmpurr  of  the  Scnale 
inform  the  noveriiDr  of  the  Stale  et 
Maryland  of  the  action  of  the  SeniUe 
In  tho  promises."  It  was  art,'ueii  in 
thedeliale  that  the  Fourl  cent  h  .Viaeni- 
ment  had  boon  elTectively  ratilied  and 
that  tlie  exclndod  States  should  not 
be  taken  into  consideration  in  that 
conn<'ctlon.     (,Ibld.,  pp.,  237-213.) 


CONCiUESSIUNAr-    KKCISIONS. 


3(57 


It  li;is  since  been  held  l)y  the  House  of  Hi'i)r('sent<itivt's  lli.it  a 
iiiiiiil) T  ilul}'  ch'cted  could  not  lie  disijualilicd  for  a  eiiuse  not 
luiiiic'l  i:i  the  Constitution,  such  as  iniinoiiility,  and  that  llu'  rcin- 
imIv  in  such  a  case,  if  any,  was  t'^jiulsion."*  'I'ho  distinction  he- 
nvrcii  llic  right  to  I'efuso  admission  and  the  right  of  (ixpulsion 
ujinn  the  same  ground  is  inniortaiit,  since  the  former  can  ho 
ildiir  iiy  a  niajoril}'  of  a  (juoi'um,  whereas  expulsion  re<|uires  the 
voir  (if  two-thirds.'*  The  <iuestion  cannot  he  said  to  have  been 
uuthnritatively  decided.  The  principle  that  each  house  has  the 
right  to  impose  a  qualifieation  ujion  its  membership  which  is  not 
lircscril)ed  in  the  Constitution,  if  established,  might  be  of  great 
danger  to  the  republic.  It  was  on  this  excuse?  that  the  Frcnidi 
Uinctory  ] mcured  an  annulment  of  elections  to  the  Council  of 
I'ivc  iliinheil,  and  thus  mainlainecl  themselves  in  power  against 
the  will  of  (he  people,  who  gladly  accepted  the  despotism  of  Xa- 
ii'iliMui  as  a  relief.''^ 


'■  Maxwi'U  ii,  Cannon,  4:1(1  Coni^resa, 
citi'il  in  iriC'iary  o.'i  Elections,  M 
(Ml..  !)  .")'.«). 

''■"  fon.-ilitntion,  Articlo  I,  Section  5. 

-'  TIk-  ariiiiriicMts  in  Mippoit  of  tlio 
rii-'lit  of  (nili(  r  lionso  to  cxcliidi!  for 
ili.-lcvalty  iini  W(>11  t^ol  forlli  in  th(^ 
iiiliKiiiiy  rcpint  of  Lvnian  Tninilmll 
ill  Siaili's  Oisn  (iiiiii.,  jip.  lllO-l'Jl): 
•II  in  aclniilU'd  tliat  neitlicr  tlic 
Si'iialc,  ("onKi'i'ss,  nor  a  Slate  oaii 
sii|ieniil(l  olJHM'  (inalilleatioim  for  a 
Si'iiiitor  to  llioKO  prewrilieil  liy  llio 
Constit.iitlrtn,  and  yet  eltlier  may  pre- 
vent a  peiwin  po^^sesslnt?  all  those 
i|iiidllic'atioii.'<,  and  duly  (fleeted,  from 
liikiiii;  Ills  sent  in  tlie  Senate.  Does 
liny  one  i|iiestlon  the  rinht  of  a  Stale 
tniirie.-.t  for  eriiiio  a  person  duly  ([nall- 
li'il  for  and  appoinle'  Senalor,  liold 
liiiii  In  ronllni>inont,  an  I  lliereliy  pre- 
vent Ills  appearing  in  tlm  Senate  to 
iiniilify?  Supposed  St-nalor,  after  hi« 
iippiiintnient  and  liefore  (pnillfyintj, 
tiii'oMiniit  the  crime  of  mnrder,  would 
anyone  ([nostlon  the  right  of  the  Stato 
iiiilliorlties  where  th(?  crime  was  com- 
luiiteil  to  arrest,  eontluo,  aud  if  found 


guilty  execute  the  murderer,  and 
lliei<>liy  prevent  his  talilriK  lii^  si'al? 
(1r  if  the  punishment  for  the  oflemo 
was  imprlsonmeiil,  would  any  one 
(|Uestioii  llie  ri^;llt  to  hold  theSeiuilor 
In  prison  and  theretij'  prevent  his 
appeariiii;  in  the  Senate?  Could  the 
Senate  iu  sinli  a  i  iis(>  <  xpid  hlin  lietoro 
h<!  had  been  adniilled  to  a  seat?  Or 
must  he  he  liroudht  from  the  felon's 
cell,  lie  introduced  into  the  Senate, 
and  sworn  im  a  niemlier  liefore  his 
seat  could  he  declared  vacant?  If 
not,  must  the  Stato  go  unrepre.simted 
till  the  time  for  which  ho  was  ap- 
pointed has  expired?  Or  would  It  lie? 
competent  for  the  Senate,  in  such  a 
caHi>,  liy  a  majority  vote  to  dcelaro 
thecouvict  ImMimpelent  to  hold  a  seat 
in  the  liody,  and  then^liy  o[H'n  the 
way  for  the  appointment  of  a  succes- 
sor? It  is  manifest  that  the  prescrili- 
ing  of  tlie  ((ualillcatioUH  for  a  Senator 
in  tlie  Constitution  was  not  Intended 
to  prevent  his  being  amenable  for 
his  crimes.  The  fact  that  the  Con- 
st It  ulion  declares  that  Senators  and 
Kepresentativus  ■  shall  iu  all  eases,  ex- 


368 


QITALIF [CAT IONS   OF   CONORESSMEN.        [('MAI'.  Vll. 


cnpt  for  felony  and  breach  of  the  peace, 
be  privllonoii  from  arrest  during!  th<'lr 
attondaiico  at  tlio  sessions  of  tlitir  re- 
spm'tivo  liouscs,  nud  in  going  to  and 
retuininjilroiii  tlic!Hiuiii','  Ih  i  oncliinivo 
that  for  tliosi'  olTcnci'S  tliey  may  b(' 
arr<!s(cd.  As  ii  piiiilslinii'iil  for  criiiio, 
tlu^n.  it  is  clear  tlml  a  soiiulor-eleet, 
p(>8ses^iMf^iillllieC!oiistitiiti(>nal<|iinli- 
lleatioiis  of  a^e,  eitizeimliip  and  iii- 
haliiliiney,  may  Iks  prevented  from 
talcing  tlie  outli  of  olllee.  (loiign^sa 
lias  repeatedly  neted  upon  Iho  pre- 
snmplion  thiil  it  wa.s  entirely  com- 
petent for  it  to  prescrilie,  us  a  piiniHli- 
mcnt  for  crime,  an  inaliility  forever 
aftorwardti  to  liold  any  olflei-of  lioiior, 
prollt  or  trnst,  under  tlio  Hinted 
States."  "  If  li  bo  eoinpntent  for 
ConnreHs  to  make  dls(|iialillealion  to 
hold  olllee  as  punisli  men  t  for  an  olTi'nco 
against  tli(3  Unitetl  States,  then  it  is 
clearly  eompcienl  for  tlio  Si'iwito, 
whieli  liy  the  Constitution  is  nnide 
♦tlio  judge  of  tlio  elections,  returns, 
and  (lualillcationsol'itsown  members,' 
to  do  the  samo  thing,  so  far  as  the 
righi  to  talio  a  seat  in  that  body  is 
eoiu'eriied.  Doulilloss  a  law  of  Om- 
gre^sdoidariiigtliat  a  poison  convii'ted 
of  a  |iarllculiir  olTence  should  n(-  hold 
o(1i(!0  under  the  tlnited  States,  and 
the  decision  of  the  courts  snstiniiing 
Hiieli  a  law,  would  not  preclndo  the 
'.o.'iiito  from  admitting  such  a  person 
toasi'!il.  should  it  think  proper,  be- 
cause the  Senate  is  the  exclusive 
jndgi'  of  tlie  elections,  returns,  and 
<iaalilications  of  its  own  members; 
yet  it  is  hardly  coneoivaliio  that  the 
Senate  ever  would  admit  such  a  person 
to  bo  sworn ;  nor  does  tlio  fact  that 
Congress  lias  not  adopted  such  a 
punishment  for  <llsh)yalty  or  treason 
prevent  the  Senate  from  refusing  to 
allow  to  be  sworn   as  a  member  a 


person  believed  by  the  body  to  he 
guilty  of  those  offences  or  other  in- 
famous crimes.  That  an  aniieil 
traitor,  a  ccmvicted  felon,  or  a  peivoii 
known  to  bo  disloyal  to  tlio  govcru- 
meiit,  has  n  (MMistitiitiomil  right  to  he 
admitteil  into  that  body,  would  ini|ily 
that  the  Senate  had  no  power  of  pm- 
tecting  itself  —  a  power  wliich.  fima 
tlie  nature  of  things,  must  be  iiilu'icut 
in  (^very  legislative  body.  Suppose  a 
member  siMit  to  the  Senate,  licfuro 
being  sworn,  woro  to  disturb  the  Ixiily 
and  by  violence  interrupt  its  priici'cii- 
iiigs,  would  tlie  Senate  becompelluil  to 
allow  such  a  person  to  be  sworn  na  a 
member  of  the  body  bcifore  It  coiilil 
past  him  out?  Surely  not,  unless  the 
Senate  is  unable  to  protect  itself  and 
preserve  its  own  order.  The  Coiisil- 
tutlon  declares  that  'each  house  iiiiiy 
determine  the  rules  of  its  proceeilings, 
puniph  its  members  for  disonleily 
liehavior,  and,  Avith  t  ho  concurrence  of 
two-thirds,  exp(d  a  member.'  The 
connection  of  tlio  sentence  in  which 
the  power  of  expulsion  is  given  wouhl 
indicate  tliat  it  was  intiMided  to  he 
exercised  for  some  act  done  as  a 
raeniber,  and  not  for  some  cause  e.xist- 
ing  before  the  member  was  elect eil  or 
took  his  seat.  For  any  crime  or  in- 
famous ai  t  done  before  that  time,  the 
appropriate  remedy  would  soimii  to  bo 
to  refuse  to  allow  him  to  ipialify, 
which,  in  the  judgment  of  the  umhr- 
signed,  the  Senate  may  properly  ilo, 
not  by  way  of  adding  to  the  (piallllcn- 
tions  imposed  by  the  Constitiilieii, 
but  as  a  punishment  done  to  his 
crlniesor  the  infamy  of  his  character." 
This  argument,  it  will  be  observeil,  ia 
lia8e<l  upon  the  assumption  tlml  % 
Senator  cannot  be  expelled  tioforo  ho 
lias  been  sworn  and  admitted  to  his 
seat. 


CHAPTER   VIII. 

APPORTIONMENT  OF  UEPUESENTATIVES  AND  DIRECT 

TAXES. 


S  W,i.    CniiHtitiitionnl  Provisions  <-onc<>rnintf  Apportionment 
of  KepresentatlvcM  and  Direct  Taxes. 

TiiK  next  clause  of  the  Constitution  ord.aiiia:  — 

"  IJcpresentatives  and  direct  Taxes  shall  be  apportioned  among  the 
scvcnil  States  which  may  be  included  within  this  L'uion,  accominj^  to 
thi'ir  ii'spoctive  Jsiinibers,  which  shall  be  determined  by  adding  to  the 
wlidli'  Number  of  Free  Persons,  including  those  bound  to  service  for  a 
Term  of  Years,  and  excluding  Indians  not  taxed,  three-fifths  of  all 
other  Persons.  The  actual  Enumeration  shall  be  made  within  three 
Years  after  the  first  Meeting  of  the  Congress  of  the  United  States,  and 
nilliin  every  sul)sequent  Term  of  ten  Years,  and  in  such  manner  as 
they  hIimH  by  Law  direct.  The  Number  of  Representatives  shall  not 
exceed  one  for  every  thirty  thousand,  but  each  State  shall  have  at  least 
one  lte])r('sentative ;  and  until  such  enumeration  shall  be  made,  the 
State  of  New  Hampshire  shall  be  entitled  to  chuse  three,  Massachusetts 
ci^ht,  Hliode  Island  and  Providence  Plantations  one,  Connecticut  five, 
New  York  six.  New  Jersey  foin-,  Pennsylvania  eight,  Delaware  one, 
Maryliiiiil  six,  Virginia  ten.  North  Carolina  five,  South  Carolina  five, 
ami  (ieorgia  three."  ' 

'i'lie  I'oiirteenth  Amendment:  — 

"  Representatives  shall  be  apportioned  among  the  several  States  ac- 
cording; to  their  respective  nmnbers,  counting  the  whole  number  of  per- 
sons in  each  State,  excluding  Indians  not  taxed.  Hut  v  hen  the  right 
to  v<ite  at  any  election  for  the  choice  of  electors  for  preside.,  and  vice- 
president  of  the  United  States,  representatives  in  Congress,  the  exec- 
utive or  judicial  otllcers  of  a  State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State,  being 
tweiity-oue  years  of  age  and  citizens  of  the  United  States,  or  in  any 

S  63.  1  Article  I,  Section  2. 
3Ut) 


!]70 


AIM'OKTION.MKNT    AND    DIUKCT   TAXKS.     [CIIAI-.  Vlll. 


••ay  iil)ri(lgeil,  except  for  psirticipsition  in  reljollion  or  oilier  eriiiic,  the 
liasis  of  representation  therein  siiail  lie  reduced  in  tlie  proportimi  whicli 
ttic  niiinlier  of  hiicIi  ninlc  citizens  sliall  bear  to  the  wliole  numljer  uf 
male  citizens  twenty-one  years  of  age  in  sucli  State." " 

g  ((4.    IliNtory  »t  tin;  C'laiis4>  (.■onconiiiiK'  t\\o  Appoi'tioiiineiit  of 
Iti'iirvMi'iitativcs  iiikI  Diri-ct  Taxes. 

The  clause  concerning  the  apjiortionnicnt  of  representatives  mul 
direct  taxes  was  the  second  of  the  three  great  eoniiironiisus  <if  ilic 
Constitution,  and  the  adjustment  of  a  eonliovcrsj-  wiiicii  had  Ijctii 
the  ciiuse  of  discord  since  the  colonics  lirsi  iiii'ederatcd  toj^cllur. 
Although  so  much  thereof  as  apj)lied  to  the  a  nortionnicnt  of  u)!- 
rescntatives  liis  'iccn  materially  niodilicd.  tlie  oilier  remains  in  liio 
origiind  language.  Since  tiie  meaning  of  tliis  is  still  the  suli- 
ject  of  a  dispute  between  two  sections  of  the  conntiy,  the  iiiipoii- 
ance  of  the  subject  seems  to  demand  a  full  consideration  of  tlie 
history  of  tlic  ju'oceedinffi  which  led  to  its  adoption. 

On  tiie  day  after  tiie  meeimg  of  the  lirst  Congress  of  tiie  I'liitiil 
States,  September  0th,  177-i,  their  first  legislative  act  was  adciptiJ 
as  follows :  — 

"  Hesolved,  tliat,  in  detennininfj;  questions  in  Congress,  eucli  ciilimy 
shall  have  oi.c  vote,  the  Congress  not  being  jiossessed  of,  or  at  pridciit 
able  to  procure,  proper  materials  for  ascertaining  the  importance  of  eaeb 
colony." 

The  advantiigo  tiien  secured  by  the  smaller  States  tliey  refused 
to  rcliuiiuish  ami  retained  in  the  Articles  of  Coiifedcraliou,  wliiuli 
were  adopted  Marcli  1st,  1781,'  and  until  tliese  were  abrogiiti'il 
by  llie  Constitution.     The  articles  provided  that  — 

"  in  detefiniiiing  (]iR'stioiis  in  the  United  States,  in  Congress  assembled, 
eacii  State  sliall  have  one  vote."  '' 

The  continuance  of  this  rule  was  one  of  the  chief  obstacles  to 
the  formation  of  the  Articles  of  Confederation.  In  1777  it  was 
projioscd  that  Uliode  Island,  Delaware,  and  (ieorgia  should  c;uli 
have  one  vote  and  the  other  States  one  vote  for  every  fifty  thous mil 
white  iuliabitants  ;^  but  tliis  was  supporteil  only  by  Virginia  :"i'l 


''  FourtiM'iilli  Ami'ndmciit.Seotloii  2. 
)j  (it.  irmtis,   tkiiiHlilutioual   His- 
tory, vol,  i,  p.  86. 


■J  Articli-  V. 

«  Hi'i'  .Ii'ITim-som's  NotoR  of  D.'liaH'nn 
Confodoratiou  iuCougrcBS,  iiiiriii|,'.Iiil.v 


§  ''^l 


HISTOKY. 


371 


riiiiisylvania.  A  delegate  from  Virginia  then  moved  that  each 
SiMtu  should  have  one  vote  for  evei}  tiiirty  tliousand  such  inhabit- 
;iiiis.  l)ut  no  other  SUvte  voted  for  the  motion.  By  a  similar  vote, 
ii  motion  tluit  representation  sliould  be  proportioned  to  the  amount 
(if  taxes  paid  by  each  colony  w.is  negatived.  Finally,  alter  a  de- 
hiUi'  (if  nearly  two  montlis,  all  the  States  in  Congress  yielded  to 
til.'  principle  of  State  equality  except  Virginia,  which  sultsequentl}- 
ratitied  the  Articles  of  Confederation  tliat  contained  it.* 

i'.i'fore  their  adoption,  the  only  financial  means  at  the  coni- 
iiKiiid  (if  Congress  were  tlic  continental  paper  currency,  and  loans 
fidiu  foreign  nations  and  from  provincial  congresses,  the  latter 
(il  wliich  exercised  the  power  of  taxation  for  their  local  efforts 
ill  t'lc  prosecution  of  tlie  war.  A  quota  of  the  currency  was 
assiL,'iK'd  to  eacli  colony,  which  was  directed  to  discharge  a  fraction 
(if  ilui  wliole  proportioned  "  to  the  imniber  of  inhabitants  of  all 
aj,'-is.  in(  hiding  negrois  and  mulattoes,"  an  obligiitimi  gcicrally 
riinnliatcd.*  So  limited  were  the  rcvenui^s  of  Congivss  tliat 
W.isliiiiLjtoii  was  obliged  to  impress  sui)|ili('s  for  the  army,  with- 
out which  he  could  not  have  witiistood  the  enemy.'' 

I  lie  eleventh  article  of  Confederation  in  the  oiiginal  draft  was 

a-  f  illows  :  — 

« 

"  All  cliiiriros  of  war.  and  nil  other  expenses  that  shall  be  iiicinred 

fi'i'  the  Pduiiiion  (U'feiicc.  or  irciioral  wi'lfarc,  and  allowed  by  the  I'liilid 

Stales  assi'inliU'd,  shall  be  defrayed  out  of  a  coiiiii'.on  treasury,  wliieli 

i-liall  lie  supplied  by  the  several  colonies  in  proportion  to  the  nunilier  of 

iiilialiilaiits  of  every  atte,  sex  and  quality,  except  Indians  not  paying; 

taxes  ill  each  colony, —  a  true  accoimt  of  which,  distinguishiuij;  the  white 

iiilialiitaiits,  shall  be  triennially  taken,  and  transmitted  to  the  Assembly 

(if  llie  I'uited  States."' 

'I'lie  Southern  States,  however,  objected  that  it  would  l)c  uiifnir 


nii'l  August,  1777.  Elliot's  l)el,aU!s, 
•-''1  111.,  vol.  i,  pp.  70-7S.  Chase  of 
Minl.inil  jiroposed  lis  a  eoiiipnitnise 
"tluil,  in  votes  relulliiKto  iiioney,  tlio 
viijie  or  each  eoloiiy  shimld  bo  pro- 
|i'iitliiii('il  to  llio  luiinlpei-  ot  iLs  iii- 
lialiilanls."     i  Ibid.,  p.  71.) 

*  T'i.vl(i,  History  ami  AmilysiB  of 
llii'iii'Ltitmidii,  3(1  ('(!.,  p.  -ID. 

■  •I'liiiuuls,  vol.  i,  p.  125,  Juno  23, 


177.");  iliiil.,  vol.  i,  ]i.  IS.'i  IHC,  June 
211,  1S7.");  cited  b.v  Curtis,  Constitu- 
tional History  of  tlio  I'niled  Slatew, 
vol.  i,  p.  22. 

'  Soo  llio  reninrks  of  Giivernor 
Clinton  in  tlie  New  York  Convention 
(Elliot's  Debates,  2d  ed.,  vol.  ii.  p. 
3(!0i  ;  niul  of  Ciiayson  in  llio  Viiviiiia 
Convention  (ibid.,  vol.  iii,  p.  290). 

"  Ibid.,  vol.  i,  p.  70. 


372 


APPnUTIONMENT   AND   DIUICCT   TAXKS.   [cilAI'.  Vlll. 


to  assess  their  colored  boiKlsn7en  at  tlie  same  value  as  tlie  fiee 
white  laborers  of  the  Nortli,  since  tlieir  work  was  far  less  ellicicnt. 
The  Southern  delejjates  moved  that  the  assessment  he  iii(i|iiii- 
tioned  to  llie  "  white  inhahitants."  A  eompromise  was  sUffgestiMl, 
whieh  the  Soutli  was  willinj^  to  accept,  "that  two  slaves  sIkhiIcIIh) 
counted  as  one  freeman." "  Hoth  propositions  were  rcjcctt'il  hy 
the  seven  Nortliern  against  five  Southern  States,  (Jeorf,'ia  iKJiig 
divided.*  As  a  compromise  the  refjiiisitions  wen;  jiroportioiuMl  to 
the  value  of  land  in  each  State,  whieh  was  then  Inilieved  l)y  many 
to  correspond  to  the  population ;  but  no  power  to  collect  taxen 
was  given  to  Congress  whieh  was  authorized  merely  to  assess  a 
re(iuisiti()n  upon  a  State  to  be  collected  by  the  State  legislature  if 
it  chose  to  act  upon  the  subject.  The  Eleventh  Article  as  finally 
adopted  was  in  these  words :  — 

"  All  eliargos  of  war  and  all  other  expoiisps  that  shall  be  hiciuTeil  for 
the  common  defence  or  general  welfare,  and  allowed  by  tlie  I'liitcii 
States  in  Congress  assembled,  siiail  be  defrayed  imt  of  a  eonuiioii  treas- 
ury, wliieli  shall  be  supplied  by  tlie  several  States,  iu  proportion  to  the 
value  of  all  land  within  eaeii  State,  granted  or  surveyed  for  any  person, 
and  such  hind,  and  the  buildings  or  improvements  thereon,  shall  be  es- 
timated aeeording  to  such  mode  as  the  Cnited  States  in  Congress  as- 
seinbled  shall  from  time  to  time  direct  and  appoint.  The  taxes  for 
paying  that  |)roportion  shall  be  levied  and  paid  by  the  authority  and 
direction  of  the  legislatures  of  the  United  States  in  Conjjress  assem- 
bled." "> 

This  system  proved  absolutely  impracticable.  Four  States  piiid 
ii'ithing  toward  the  requisitions  which  Congress  levied;  and  all 
but  two,  less  than  the  amount  required  of  them."  Tlic  unfairness 
of  the  as-sessment,  which  must  always  be  a  grouml  of  controversy 
wherev(U'  the  value  of  land  is  an  element  in  the  (M)m[iutatinii. 
Wivs  an  cycusc  set  U])  by  some  of  the  didin(]ueiit  States;  bin  tlie 
feeling  against  them  ran  high  in  Congress,  and  more  than  once  it 
was  proposed   to  use  force  to  collect  the   balances."*     The  bank- 

Huniciciit  |)ayinent  of  all  arrears  dm' 
from  thi'iii  to  the  Uiiltod  Stiites.  Oin- 
gresH  natiually  protfstod.  .Jounials 
XI,  |>.  iU  ;  Curtis,  Coastitutioiial  His- 
tory, vol.  i,  p.  Kill. 

"  fUllol's  Debutes,  2d  od.,  vol.  Hi, 
p.  243. 


»  Ibid.,  vol.  I.  p.  72;  vol.  v,  p.  71). 

»  Augiisl  1.  1777.  Ibid.,  vol.  I,  pp. 
7H-74. 

">  Articlo  VIII. 

"  Soo  §  3,  note  1,  Hiiimi.  In  1786, 
Rhode  Island  and  New  .lorsey  passed 
laws  to  make  their  own  paper  money 


,M)4.] 


III8TOKY. 


878 


rii|it(\v  (if  the  treasury  anil  tlio  depreciation  of  the  continental 
currency  at  the  close  of  the  war,  when  foreiffn  sovereigns  had 
III)  liiiifjcr  any  incentive  to  (ontiniie  loans  originally  made  for 
use  in  crij)j)ling  Kngland,  made  some  new  measure  of  finance  iu- 
ilisiicnsalile.  On  March  (ith,  ITMo,  the  ('omniittet-  on  Revenue  re- 
|i(irtcd  to  Congress  a  series  of  resolutions  which  proposed  that  the 
Slates  grant  to  Congress  for  the  period  of  twenty-live  years  and 
fur  the  purpose  of  paying  "the  dehts  which  shall  have  heen  con- 
tracted on  the  faith  of  the  United  States  for  supporting  the  present 
win."  the  power  to  levy  an  impost  or  t^irifT  f)f  live  per  cent,  upon 
111!  iTii])ortations,  with  special  rates  on  salt.  li((nors,  tea  and  sugar. 
Tiiey  further  reconunended  :  — 

"11.  That,  ns  a  more  conveuient  and  certain  rule  of  ascertaining  the 
])io|>ortion8  to  he  supplied  by  the  states,  respectively,  to  the  conunon 
tiiiisiirv,  the  foliowiu<;  alteration,  iu  the  Articles  of  Coufederatiou  and 
pi'ipi'tiial  I'nion  between  these  states,  be,  and  the  siune  is,  hereby 
ajirci'd  to  in  C'ongrcss ;  and  the  several  states  arc  advised  to  aiithorizn 
tlicir  respective  delegates  to  subscribe  and  ratify  the  same,  as  part  of 
till'  said  instnuiient  of  union,  in  the  words  following,  to  wit :  — 

"  '  So  nuich  of  the  eighth  of  the  Articles  of  Confederation  and  Per- 
petual I'nion  between  the  thirteen  states  of  America  as  is  contained  in 
the  words  fol  owing,  to  wit:  "All  charges  of  war,  and  all  other  ex- 
penses that  shall  be  incurred  for  the  conunon  defence  or  general  welfare, 
and  allowed  by  the  I'nited  States  in  Congress  assembled,  shall  be  de- 
fniyed  out  of  a  conunon  treasury,  which  shall  be  supplied  by  tiie  several 
stiites,  in  proportion  to  the  value  of  all  land  within  each  state  granted 
to.  or  surveyed  for,  any  person,  and  such  land,  and  the  buildings  and 
iiiiprovenients  thereon,  shall  be  estimated  according  to  such  mode  as  the 
I'liited  States  in  Congress  assenibleil  shall,  from  time  to  time,  direct 
anil  appoint,"  is  hereby  revoked  and  made  void,  and  in  place  thereof  it 
is  declared  and  concluded,  the  same  having  been  agreed  to  in  a  Con- 
gress of  the  I'nited  States,  that  all  charges  of  war,  and  all  other  ex- 
penses that  shall  be  incurred  for  the  common  defence  or  general  welfare, 
iuid  allowed  by  the  United  States  in  Congress  assembled,  shall  be  de- 
frayed out  of  a  common  treasury,  which  shall  be  supi)lied  by  the  several 
Htates  in  proportion  to  the  number  of  inhabitants,  of  every  age,  sex, 
and  condition,  except  Indians  not  paying  taxes  iu  each  state;  which 
nninlier  shall  be  triennially  taken  and  transmitted  to  the  Cnited  States, 
in  Congress  assembled,  in  such  mode  as  they  shall  direct  and  appoint; 
provided,  always,  that  in  such  numeration  no  persons  shall  be  included 


1174 


AIM-OKTIDN'MKNT    AM>    DIKKCT    TAXKS.      [('MAI'.  Vlll. 


who  nrc  bound  to  servitmlo  f<ir  life,  nci'onUng  to  the  lawn  of  tin-  state 
to  which  tliry  Im'Iuiii;,  otliiT  than  Huch  as  may  bo  betwccu  the  ngvs  of 
years.'  "  '* 

In  tlie  (k'l)!it()  iijK)!!  tlio  resolutions  recommemk'cl  in  tlie  leiwit, 
on  Thursday,  Miiivh  27th,  1783:  — 

"  Mr.  Bland,  iu  opposition,  said,  that  the  value  of  land  was  the  best 
ride,  and  tli.it,  at  any  rate,  no  change  should  be  attempted  until  ltd 
praetieability  should  be  tried. 

"Mr.  Madison  thought  the  value  of  land  could  never  be  justly  or 
satisfactorily  obtained ;  that  it  woultl  ever  be  a  source  of  contentions 
omong  the  states;  and  that,  as  a  repetition  of  the  valuation  would  lie 
necessary  within  the  course  of  twenty-live  years,  it  would,  unless  ex- 
changed for  a  more  simple  rule,  mar  the  whole  plan. 

"  .Mr.  (iorhain  was  iu  favor  of  the  paragraphs.  lie  repre8ente<l,  iu 
strong  terms,  the  inecjuality  and  clamors  jiroduced  by  valuations  of 
Uiu<l  in  the  state  of  .Massachusetts  and  the  i)robal)ility  of  the  evils  being 
increased  among  the  states  themselves,  which  were  less  tied  together, 
and  more  likely  to  be  jealous  of  each  other. 

"Mr.  Williamson  Wiis  in  favor  of  the  paragraphs. 

"  Mr.  Wilson  was  strenuous  in  their  favor;  said  he  was  in  Congress 
when  the  Articles  of  t'onfedcratioii  directing  a  valuation  of  land  were 
agreed  to;  that  it  was  the  etTect  of  the  impossibility  of  comproinisiiig 
the  different  ideas  of  the  Kastern  and  Southern  States,  as  to  the  value 
of  slaves  compared  with  the  whites,  the  alternative  iu  question. 

"  Mr.  Clark  was  in  favor  of  them.  lie  said,  that  he  was  also  iu  Con- 
gress when  this  article  was  decided  ;  that  the  Southern  States  would 
have  agreed  to  numbers  in  |)reference  to  the  value  of  land,  if  half  tlieir 
slaves  only  should  be  included  j  but  that  the  Eastern  Slates  would  not 
concur  in  that  proposition. 

"  It  was  agreed,  on  all  sides,  that  instead  of  fi.ving  the  proportion  by 
ages,  as  the  re])ort  proposed  it,  it  would  be  best  to  fix  the  proportion  in 
absolute  nundiers.  With  this  view,  and  that  the  blank  might  be  filled 
up,  the  clause  was  recommitted. 

'« Friday,  March  28. 

"  The  coMunittee  last  mentioned  reported  that  two  blacks  be  rated  as 
one  freeman. 

"  Mr.  Wolcott  was  for  rating  them  as  four  to  three. 

"  Mr.  CorroU  as  four  to  one. 

'•'  Report  of  Doliates  in  (\)nf;ress  of  sou  Papers,  Elliot's  Debates,  2d  ed., 
the  Confederation,  by  Madison.   Madl-      vol.  v,  pp.  C3-64. 


^(14, 


HISTOUY. 


873 


'•Ml.  Williamson  HiiicI,  lie  was  priucipiod  iiifninst  uliivcry  ;  nml  tiiat 
!ie  ilioiiKlit  Hiaves  an  cnc(inil>i'anc«  tu  oucicty,  iuHteiid  of  inoiTnaiuK  its 
nliiliiY  I"  pay  taxes. 

'•  Mr.  Iliji^inson  as  four  to  three. 

"  .Mr.  Uiitledgo  said,  for  the  saite  of  tiie  object,  ho  would  agree  to 
r.ile  slaves  as  two  to  one,  l)iit  hu  sincerely  thought  three  to  one  would 
!«'  II  jimter  proportion. 

"  Mr.  Ilolten  ns  four  to  three. 

"  ,Mr.  Osgood  Huid,  he  did  not  go  beyond  four  to  tiiree. 

"i)\\  a  i|ueHtion  for  rating  theni  as  three  to  two,  tlie  votes  were,  New 
Ilaiiipshirc,  ay;  Alassachiisetts,  no;  Uhodu  l.sland,  ilivided ;  Connccti- 
<iil.!iy;  New.k'r8ey,ay  ;  Pennsylvania,  ay  ;  Delaware,  ay  ;  Maryland, 
no;  \  irginia,  no;   North  Carolina,  no ;   South  Carolina,  no. 

"'I'lu'  piirngraph  was  then  postponed,  by  general  consent,  soniewish- 
iiif.'  for  fin'ther  time  to  deliberate  on  it,  but  it  ai)pearing  to  be  the  gen- 
cnil  (i|)inion  that  no  compromise  would  be  agreed  to. 

"  After  some  further  discussions  on  the  rejiort,  in  which  the  necessity 
(if  some  sim|)le  and  practicable  rule  of  a])p()rtioument  came  fully  into 
view,  .Mr.  Madison  said,  that  in  order  to  give  a  proof  of  the  sincerity  of 
his  pnifessionsof  liberality,  he  would  ])ropose  that  slaves  should  be  rated 
;is  live  to  threo.  Mr.  l{utledge  Beeonde<l  the  motion.  Mr.  Wilson  said, 
lie  would  sucritice  his  opinion  on  this  compromise. 

"  Mr.  l.ee  was  against  changing  the  ride,  but  gave  it  as  his  opinion 
that  two  slaves  were  not  equal  to  one  freeman. 

"  On  the  question  for  five  to  three,  it  passed  in  the  adirmative ;  New 
IIuiii|ishire,  ay;  Massachusetts,  divided;  Hliode  Island,  no;  Connecti- 
cut, no;  New  .Jersey,  ay  ;  rennsylvania,  ay  ;  Maryland,  ay;  Virginia, 
tiy;  North  Carolina,  ay;  South  Carolina,  ay. 

"  A  motion  was  then  made  by  Mr.  Hhin<l,  seconded  by  Mr.  Lee,  to 
strike  out  the  clause  so  umcnded,  and,  on  the  question,  '  Shall  it 
stiiiul?'  it  passed  in  the  negative  ;  New  Ihunpsliire,  ay  ;  Massachusetts, 
no;  Rhode  Island,  no  ;  Connecticut,  no  ;  New  .lorsey,  ay  ;  Pennsylva- 
nia, ay;  Delaware,  no;  lihode  Island,  no;  Connecticut,  no;  North 
Carolina,  ay;   South  Carolina,  no;  so  the  clause  was  struck  out. 

"The  arguments  used  by  those  who  were  for  rating  slaves  high,  were 
that  the  expenses  of  feeding  and  clothing  them  was  far  below  that  inci- 
iliMit  to  freemen,  as  their  industry  and  ingenuity  were  below  those  of 
freemen ;  and  that  the  warm  climate  within  which  the  states  having 
slaves  lay,  compared  with  the  rigorous  climate  and  inferior  fertility  of 
the  others,  ought  to  have  great  weight  in  the  case,  and  that  the  ex- 
ports of  the  former  states  were  greater  than  of  the  latter.     On  the  oilier 


37t) 


Al'l'OltTIONMENT    ANI>   IUKFX'T   TAXKS.      [ciIAl'.  Vlll. 


Mi(lt>,  it  wuM  Biiid  tliiit  bIiivch  were  not  put  to  lubor  uh  yoinij;  as  ttic  cliil- 
iliea  of  liilioriiig  fiimiliosi  that,  Imvinj^  no  inteipst  in  their  lat)oi,  thiy 
dill  an  litlli'  an  |)OMsil(lt>,  iiml  omitU-d  cviM-y  uxiTlion  of  thought  ii  ,iii8ite 
to  fiu'ilitnlc  mid  cxpoditu  it;  tliiit  it  the  exports  of  the  Btatca  huvinjr 
shivei)  oxcfcch'd  those  of  the  otliera,  their  iuiports  were  in  projiortioii, 
sliivcs  iK'iii;^  c'uipliiyed  wiiolly  in  n(i;riculture,  not  in  inunufaetures,  iiiul 
tiiiit,  in  fiict,  tilt!  Iiuliince  of  tnide  formerly  wu»  much  more  against  liie 
SoulliiMii  Stall's  than  the  others. 

"On  the  main  (pieHtion,  New  Hampshire,  ay;  Massachusetts,  no; 
Khode  Island,  no;  Cunni't'ticut,  no ;  New  York  (Mr.  Floyd),  ay;  New 
■lersey,  ay ;  Delaware,  no;  Maryland,  ay;  Virjjir'a,  ny ;  North  Caro- 
lina, uy  ;   South  Carolina,  no."" 

On  April  18th,  17H8,  Conpfres  )y  the  vote  of  ten  States,  New 
York  heiiijj  divided,  (iuorj^iii  absent,  and  Riiodo  Ishind  ahine  oji- 
posiiitj,  sent  to  the  Heveral  Statis  the  reeoniniendatioii  of  a  jjranl 
of  tlu!  power  to  lev\-  tlie  impost  and  of  an  amendment  of  tiiu 
Eightli  Artiide  of  Confederatiou  so  tliat  the  treasury  should  — 

"be  supplied  l)y  the  several  States  in  proportion  to  the  whole  niniilicr 
of  white  and  otlior  free  citi/.i>ns  and  inhabitants,  of  every  ajie,  sex,  ami 
condition,  includini;  those  bound  to  servitude  for  a,  term  of  years,  and 
three-fifths  of  all  other  j)ersons  not  eomprehiMided  in  the  fore<roii.;;  (If- 
seription,  except  Indians  not  paying  taxes,  in  each  State;  which  nnni- 
ber  shall  be  triennially  taken  and  transmitted  to  the  United  States  in 
Congress  assendjied,  in  such  mode  us  they  shall  direct  and  appoint."" 

All  of  the  States  except  New  York,  which  imposed  impracticablL' 
conditions,"'  granted  the  impost;  hut  only  eleven  ratified  the  pnv 
posed  amendment.     So  the  project  failed. 

The  second  of  the  resoliition.s  proposed  by  the  Virginia  delega- 
tion, introduced  by  Randolph  at  the  opening  of  the  convention, 
was  in  these  words :  — 

"  that  the  right  of  suffrage  in  the  national  legislature  ought  to  bo  pro- 
portioned to  the  quotas  of  contribution  or  to  the  number  of  frea  inh.ibi- 
tauts,  as  the  one  or  the  other  rule  may  seem  best  in  different  cases."  " 


i*EI11<)1'h   Dcibates,  2cl' vd.,  vol.  v,  largo  revenues  (Icrivcil  from  Hr' duties 

pp.  7S  HO.  on  iinporlK  at  New  York  Harbor. 
'5  Ibid.,  vol.  i,  p.  95.  "  Madiwiii  I'lipors,  Elliot's  Debates, 

'"  The  Stale  did   not  wish   to  re-  2d  ed.,  vol.  v,  p.  127. 
lluquish    to   the    United    States    the 


i;4.] 


HISTOIIY. 


87T 


'I'll,'  ('(.nsideration  of  this  wnH  i)OHti)oiie(l  till  it  iiad  'leeii  (Ictcr- 
iiiiiu'  i  by  tii(!  comiiiitteo  of  tlio  whole,  that  ii  natioiiul  povenmitiiit 
sii mill  111!  establisheil  with  throe  (hpiirtnicntH;  that  the  national 
li'^i  1  iliiie  shouM  coiisistof  two  hiaiiehcs  ;  that  the  Senate  should 
lii-  rli'cfed  l)v  •'w  State  le<,'islatuieH  and  the  lower  houso  Ity  the 
[inipK'.     It  \V!W  (I:  11  moved  — 

'■  lliMl  the  rij;ht  of  B'iifi':i;;c  in  the  llisl  branch,"  the  lower  house,  "  of  tho 
tiiiiimiMl  le^iHlutiire,  onj,;ht  not  to  lie  aeeording  to  the  rule  estalilishecl  liy 
ilic  Arliele-i  of  Confeoenvtion,  but  aeeording  to  some  e(iuit»blc  ratio  of 
ivpri'scntution."  " 

Hutledge  of  South  Tarolina  had  juHt  — 
"  |irii|K)rte(l,  that  the  proportion  of  sulTrnge  in  the  lirut  branch  should 
lie  iii'coriling  to  the  quotas  of  contribution.  The  justice  of  this  rule, 
lii'siiid,  could  not  be  contested.  Mr.  Hutler  urged  the  same  idea,  adding 
tli:it  nion.y  was  power;  and  thai  ilie  Stiitcs  ought  to  have  weight  in 
the  goverinucnt  in  proportion  to  their  wealth."  '° 

liufus  Kiiijf  had  previously  observed  that  a  system  founded  upon 
the  (|Uolas  of  eontiilmtion  — 

"would  not  answer;  because,  waiving  every  other  view  of  the  matter, 
the  revi-nue  might  hereafter  be  so  collected  by  the  general  government, 
that  the  sums  respectively  drawn  from  the  States  would  not  appear,  and 
would  besides  be  continually  varying.  "  •" 

"On  the  question  lor  agreeing  to  Mr.  King  and  Mr.  Wilson's  motion, 
it  |):i8sed  in  the  alllrmative.  Massachusetts,  Couueeticut,  I'eniisylva- 
niii,  ^'irginia,  North  Carolina,  South  Carolina,  Georgia,  ay,  7  ;  New 
York,  New  Jersey,  Delaware,  no,  iJ ;  Maryland,  divided. 

'•  It  was  then  moved  by  Mr.  Kutledge,  seconded  by  JFr.  Ilutler,  to 
add  to  the  words  '  equitable  ratio  of  representation  '  at  the  end  of  the 
motion  just  agreed  to,  the  words  '  according  to  the  quotas  of  contribu- 
tion.' On  motion  of  Mr.  Wilson  seconded  by  Mr.  Pinckney  this  was 
postponed  in  order  to  add  after  the  words  '  equitable  ratio  of  represen- 
tation' the  words  following  — '  in  jjroportion  to  the  whole  nundier  of 
wiiite  and  other  free  citizens  and  inhaliitants  of  every  age,  se.x,  and 
condition,  including  those  bound  to  servitude  for  a  term  of  years,  and 
tliici'-lifths  of  all  other  persons  not  comprehendctl  in  the  foregoing  de- 
seiiption,  except  Indians  not  paying  taxes  in  each  State '  —  this  being 


"  Madison  Pajiors,  Elliot's  Debates, 
2il  .il ,  vol.  V,  p.  178. 
"  Ibid. 


20  Ibid.,  p.   134. 
marks,  p.  178. 


See  also  his  re- 


378 


AI'POKTroS'MKNT    A>JI>   DIRECT   TAXES.      [CMAl*.  Vllf. 


the  rule  in  the  tict  of  Congress  agreed  to  by  eleven  states,  for  appor- 
tioning nuota.s  of  revenue  on  the  states,  and  requiring  a  census  only 
every  live,  seven,  or  ten  years. 

'*  !Mr.  (ierry  tliougiit  property  not  the  rule  of  representation.  Wiiy 
then  should  the  Itlacivs  who  were  property  in  the  South,  be,  in  the  rule 
of  representation,  more  than  the  cattle  and  horses  of  the  North? 

"  On  tlie  question — Massachusetts,  Connecticut,  New  York,  IViiii- 
eylvania,  Maryland,  Virginia,  North  Carolina,  Scutb  Carolina,  Georifia, 
ay,  i) ;   New  Jersey,  Delaware,  no,  2."" 

It  was  undenstood  that  these  resolutions  were  provisional,  and 
many  wlio  voted  for  the  measure  did  so  in  the  liope  that  it  \\oul(l 
faiillitate  the  settlement  which  gave  to  the  smaller  States  an 
equality  in  the  Senate.  The  larger  States,  how-ver,  immediately, 
by  a  vote  of  six  to  five,  adopted  a  resolution  making  the  ratio 
of  rupre.sentiition  in  both  houses  the  same.^  The  small  States 
thereupon  combined  for  mutual  protection  ai\d  were  aided  by  tlie 
support  of  a  majority  of  the  delegation  of  New  York  and  Lutlier 
Martin  of  Maryland,  who  became  convinced  that  the  system  which 
was  in  the  course  of  construction  was  too  much  of  a  consolidation. 
The  •'  propositions  from  New  Jersey  "  were  moved  as  a  sulistitute 
for  the  report  of  the  conunittee  of  the  whole.  These  resolved  for 
an  amendment  of  the  Arti<;les  of  Confederation  so  as  to  give 
Congress  the  pcnver  to  raise  a  revenue  by  means  of  a  tariil  on 
imports,  stamps  on  paper,  vellum  and  parchment  and  postage,  be- 
^ides  other  powers ;  but  no  otlier  power  of  tivxation  except  by  re- 
quisitions in  proportion  to  the  ratio  finally  adopted,  which  Con- 
gress could  not  collect  until  after  refusal  by  the  States  to  jay 
Avithin  a  time  therein  specified.^''  Although  tliese  proposiiioiis 
were  defeated,  their  supporters  rallied  upon  a  motion  to  strike 
out  the  word  "  not "  from  the  resolution  as  to  the  rule  of  suffrage 
80  that  it  should  read  :  — 

«'  that  the  rule  of  suffrage  in  the  first  branch  oujuit  to  be  according  to 
that  establislied  by  the  Articles  of  the  Cou federation," 

but   they  were   defeated  by  six  votes  to   four.     Massachusetts, 


21  MadiHon  Papers,  Elliot's  Debates, 
*i<)d.,  vol.  V,  p.  181. 

^'  MasHachusctts,  Pennsylvania, 
Virginia,  North  Carolina,  South  Caro- 


lina, Oi'orRia,  ay,  fi;  Connoctloiit.  N'l'W 
York,  New  3i\Tsvy,  Delaware,  Miiry- 
land,  no,  5  (ibid.,  p.  182). 

2'  Ibid.,  p.  192.     Sfo  Hupru,  §  17. 


^  (;■!.] 


HISTOIiV. 


;79 


IV;;i.sylviinia,  Virginia,  Nortli  Carolina,  South  Carolina,  Gcorj^na, 
;\\.  li ;  Conneclicnt,  New  York,  Nuw  Jersey,  I)ela\v;ire,  no;  Mary- 
luid  being  divided,  and  New  Hampsliire,  wl'  'h  would  Iiave  aided 
tlie  otiier  small  States,  being  not  represented.'"  Tln-ough  the 
division  of  Georgia,  the  vote  was  a  tie  on  the  iiroposition  that  the 
Stilts  should  have  an  equal  voiee  in  tlie  Senat(! ;  and  tlie  sul)- 
jci  t  was  tiien  referred  to  a  eoinniitt(!e  of  one  for  each  State  in 
the  linpe  that  a  eoniproniise  might  l)e  arranged.^  Franklin  left 
til.'  side  of  the  larger  States,  and  at  tlie  end  of  tliree  days  the 
fdlliiwing  report  was  made  :  — 

'•Tlie  C'oiniiiittee  to  wiioni  was  referred  the  eiy;htli  resohition  of  the 
rp|«iit  from  the  C'oiniiiittee  of  the  wliole  House,  and  so  much  of  the 
si'vi'iitli  as  has  not  l)ceu  decided  on,  submit  tlie  followinf?  report:  — 
'I'liMt  the  sul)se(iueiit  propositions  be  recommended  to  the  C  )Uvention 
on  eoiulition  tliat  botii  shall  be  generally  adojitcd.  1 .  That,  in  the  first 
linuich  of  the  legislature,  v;aeh  of  the  States  now  in  the  Union  shall  be 
iillowi'il  one  member  for  every  forty  thousand  inhabitants,  of  the  de- 
scri|ition  reported  in  the  seventh  resolution  of  the  Committee  of  the 
ivliiile  House;  that  each  State  not  eontaiuing  that  uumlier  shall  be 
alliiwi'd  one  member;  that  all  bills  for  raising  or  appropriating  money, 
ami  for  lixing  the  salaries  of  the  ollieers  of  the  government  of  the 
Initi'd  States,  shall  originate  in  the  first  branch  of  the  legislature,  and 
shiill  not  be  altered  or  amended  by  the  seeond  branch ;  and  that  no 
iiioiicy  shall  be  drawn  from  the  public  treasury  but  in  pursuance  of  ap- 
]ii(ipriations  to  be  oriixinated  in  the  first  branch.  2.  That,  in  the  sec- 
end  linineh,  each  state  shall  have  an  equal  vote."  '■"" 

In  tlie  sulisetjuent  debate,  Ciouveinenr  Morris  said  :  — 
'•  lie  i(v'-<- '  forward,  also,  to  that  range  of  new  states  which  ■would 
Kdiiii  111!  f>.. .ned  in  the  West.  He  thought  the  nde  of  representation 
<iii_dit  to  be  BO  fixed,  as  to  secure  to  the  Atlantic  States  a  prevalence  in 
till'  national  councils.  The  new  states  will  know  less  of  the  public  in- 
ttri'vt  than  these;  will  have  an  interest  in  many  respects  different; 
ill  imrtieiilar,  will  be  less  scrupulous  of  involving  the  eommuuity  in 
wars,  the  burdens  and  operations  of  which  would  fall  ehiefiy  on  the 
iiiiiritiiiie  states.  Provision  ought,  therefore,  to  be  made  to  prevent  the 
iiiaiitiiiie  states  from  being  hereafter  outvoted  by  them.  He  thought 
tliis  might  be  easily  done,  by  irrevocably  fixing  the  number  of  repra- 


•*  Maillson  PnporB,  KlUut's  Dubatcs, 
2il  cl.,  vol.  V,  p.  259. 


»>  Ibid.,  p.  273. 
«  Ibid. 


380 


Al'POIJTlONMEXT    AND    DIUIX'T    TAXES.      [CHAP.  VIII. 


seiitatives  which  the  Athiutic  States  Bhould  respectively  have,  and  the 
number  which  each  new  state  will  have.  This  would  not  be  unjust,  sis 
the  western  settlers  would  previously  kuow  the  conditions  on  which  tlioy 
were  to  possess  tiieir  lands.  It  would  be  politic,  as  it  would  recoinineud 
the  plan  to  the  present,  as  well  as  future,  interest  of  the  states  which 
must  decide  the  fate  of  it."  " 

Col.  Mason  said :  — 

"The  case  of  new  states  was  not  unnoticed  in  the  committee;  but 
it  was  thought,  and  he  was  himself  deciiledly  of  opinion,  that  if  tliey 
made  a  part  of  the  Union,  they  ought  to  be  subject  to  no  uufsivorable 
discriminations.     Obvious  considerations  required  it."''" 

The  subject  of  tlie  apportioinnent  of  lepresentation  was  re- 
ferred to  a  new  coinniittee,  who  siiUse([Uently  reconnncnded :  — 

"That,  in  the  first  meeting  of  the  legislature,  the  first  briinch  lliereof 
consistof  fiftj'-six  niemliersof  which  number  New  Hampshire  slinll  iiave 
2,  Massachusetts,  7,  Rhode  Island,  1,  Connecticut,  4,  Now  York,  .'i. 
New  Jersey,  ;t,  Peinisylvania,  S,  Delaware,  I ,  JIaryland,  4,  Virgiiiin.  1), 
North  Carolina,  5,  Soutli  Caroiiiiji,  a,  (ieorgia,  2.  Hut  as  tlie  presi-iit 
situation  of  tlie  stales  may  |)r()liabiy  alter,  as  well  in  point  of  weiiltli  ii» 
in  the  number  of  their  iniinbilaiits,  timt  the  legislature  be  authoi'i/.i'd 
from  time  to  time  to  augment  the  iiiinil)i'r  of  representatives.  And  in 
case  any  of  tiie  states  simll  lu'ri'aflcr  be  divided,  or  any  two  or  iiioic 
states  united,  or  any  new  states  created  within  the  limits  of  the  I'nited 
.States,  the  legislature  shall  possess  authority  to  regulate  the  number  of 
representatives,  in  any  of  the  foregoing  cases,  upon  the  principles  of 
tlieir  wealth  and  number  of  inhabitants." 

"  Mr.  Sherman  wished  to  know  on  what  principles  or  calculations  the 
report  was  founded.  It  did  not  appear  to  correspond  with  any  rule  of 
numbers,  or  of  any  requisition  hitherto  adopted  by  Congress." 

Mr.  Gorliani :  — 

"  Some  provision  of  this  sort  was  necessary  in  the  outset.  The 
number  of  libicks  and  whites,  with  some  regMrd  to  supposed  wealth, 
was  the  general  guide.  I''ractions  could  not  be  observed.  The  legisla- 
ture is  to  make  alterations  from  time  to  time,  as  justice  and  propriety 
may  require.  Two  objections  prevailed  against  the  rule  of  one  me iiiber 
for  every  forty  thousand  inhabitants.  The  first  was,  that  the  representa- 
tion would  soon  be  too  numerous ;  the  second,  that  the  Western  States, 
■who  may  have  a  different  interest,  might,  if  admitted  on  that  principle, 

■"  Il>ld..  p.  279.  "  Ibid. 


§i;4.] 


I'UOCEEDINCiS    IX   (.'ONVKNTION. 


381 


liy  (U'.urri'cs  oiitvntc  the  AtliMitic.  IJotli  tliL'sc  ohjcctions  arc  removed. 
I'lu'  miiiiber  will  be  smuU  in  the  first  instance,  iiiid  may  be  eontiniied 
so.  And  tiie  Atlmitic  States,  havin<?  the,  government  in  tiieir  own 
liiimls,  may  take  care  of  their  own  interest,  by  dealing  out  tlie  rif^lit  of 
representation  in  safe  proportions  to  the  Western  States.  Those  were 
the  views  of  the  Committee."  '" 

The  subject  was  referred  to  a  neweommittoc.  who  increased  the 
nunibrr  of  representatives  in  their  report :  — 

"tiiat  tlie  States  at  the  first  meeting  of  the  general  legislature,  should 
lu'  ivpresented  by  sixty-five  members,  in  the  following  proportions,  to 
wit:  New  Ilampsiiire,  by  3;  Massachusetts,  H  ;  Riiode  Islun<l,  1  ;  t'on- 
neeticut.  ;") ;  New  York,  (i ;  New  Jersey,  4  ;  Pennsylvania,  H  ;  Delaware, 
1;  .Maryland,  (1 ;  Virginia,  10;  North  Carolina, . 5  ;  South  Carolina,  5  ; 
Goorgiii,  :i."  »» 

After  the  defeat  of  several  motions  t(>  cliange  tlic  niinibers  al- 
lotted to  different  States,  the  report  was  adopted  hy  nine  States 
against  two.^' 

"Mr.  Randolph  moved  as  an  amendment  to  the  report  of  the  com- 
mittee of  five  '  that,  in  order  to  ascertain  the  alterations  in  the  popula- 
tion and  wealth  of  tiie  several  states,  tlie  legislature  should  be  required 
to  cause  a  census  and  estimate  to  be  taken  within  one  year  after  its  first 

iiu'cting';  and  every- years  thereafter;  and  that  the  legislature  ar- 

tanac  the  representation  acoorilingly." 

".Mr.  (Jouverncur  Morris  opjiosed  it,  as  fettering  the  legislature  too 
iiiiicli.  Advantage  may  be  taken  of  it  in  time  of  war  or  the  apprehen- 
siiiii  of  it,  by  new  states,  to  ext(jrt  ])articiihu'  favors.  If  the  nioilc  was 
to  be  fixed  for  taking  a  census,  it  might  certainly  bo  extremely  iiicoii- 
vcnienl  ;  if  unfixed,  the  legislature  may  use  such  a  mode  as  will  defeat 
tliodliject,  and  peqietuate  the  inequality.  He  was  always  against  such 
sliiickles  on  the  legislature.     They  had  been  fouii<l  veiy  periiiciDUS  iu 


'■'  JLiilison  Papers,  Elliot's  Debates, 
2il  I'll.,  vol.  V,  p.  '2H8.  See  also  the  ro- 
iiiiiikHof  lliitledKc,  ibiil.,  p.  297,  iiinl 
of  (toiivi'i-noiir  Morris,  ililil.,  pp.  294, 
2'.ls.  The  latter  Kiilil:  "  If  the  westeni 
people  not  till)  powor  into  (heir  linnils, 
they  will  ruin  tlie  Allaiilic^  interests. 
The  liiuk  ineniliers  are  alwiiys  luo.'-t 
nvi'ise  to  11,0  bent  measiire.s.  He 
luentioneil  the  ease  of  Pennsylvania 
tennerly.      The    lower    pmt    of    llio 


state  liail  tlie  power  in  the  lirsl  iii- 
stftiiee.  They  kept  It  in  llieir  own 
liHiids,  aiu!  the  country  was  the 
liellor  for  it." 

•"  Ibiil.,  p.  290. 

"'  Mass.ii'liu.setts,  Oonnoetieut,  New 
Voik,  New  .lersi'v,  Pennsylvania,  Del- 
aware, Maryl.'inil,  Virj^inia,  Nortli 
Carolina,  ny,  9;  South  ("urolinn,  (teoi- 
Kla,  no,  a.     Ibid.,  p.  293. 


[582 


APPOUTIONMENT. 


[CIIAI'.  VIII. 


lno.^t  i)f  tlie  state  coiislitiitioiis.  He  thvclt  much  on  the  (l;ui|_'i'r  of 
throwing  siieli  a  pri'poiiik'iaiici'  into  the  western  scale;  snggestnij;  ilmi, 
ill  time,  tlie  western  peopit'  would  oiit-niiinber  tiie  Athmtie  Stales.  He 
wished  tiierefore  to  i)ul  it  in  tiie  power  of  tlie  latter  to  keep  a  iiiajorilv 
of  votes  in  their  own  hands.  It  was  objected,  he  said,  that  if  llii^  loi;i.s. 
hitiiie  are  left  at  lilierty,  they  will  never  readjust  the  representation.  He 
adniitted  that  this  was  possible,  but  he  did  not  think  it  probable,  unless 
the  reasons  against  a  reviaiou  of  it  were  very  urgent,  and  in  this  case  it 
ought  not  to  be  done.""^ 

Hud  his  alignments  prevailed,  the  citizens  of  the  West  wonkl 
soon  have  leifiinU'd  those  of  the  East  in  the  same  manner  that  the 
English  (lid  the  owners  of  their  rotten  iKiroughs,  an<l  dissensions 
have  arisen  that  miglit  easily  have  torn  the  Ignited  States  apart 
long  Ix'fore  tlie  extension  of  slavery  became  a  vital  issue.'" 

Meanwhile,  tiie  Southern  States  had  perceived  that  the  ])nwer 
thus  vested  in  tliose  on  tlie  North  Atlantic  to  discriminate  iigaiiist 
the  new  Slates  that  would  be  formed  in  the  West,  might  he  used 
against  them  too.  Alasoii,  of  V^irginia,  who,  more  than  any  one 
of  his  time,  foresaw  the  danger  to  slavery  which  lay  in  the  t'on- 
stitution,^  gave  voice  to  this  feeling:  — 

" 'I"he  greater  the  dilliculfy  we  find  in  fixing  a  proper  rule  of  ivpie- 
senlMlion,  the  more  unwilling  ought  we  to  be  to  throw  the  task  fnim 
ou'-selves  on  llie  general  legislature.  He  did  not  object  to  the  eonjoolu- 
ral  ratio  which  was  to  prevail  in  the  outset,  but  considered  a  revision, 
from  time  to  time,  according  to  some  permanent  and  precise  sUiiiclard, 
as  essi'iilial  to  the  fair  representation  required  in  the  lirst  branch.  .\('- 
cording  to  the  present  population  of  America,  the  northern  pail  of  it 
had  a  right  lo  pre|H/iidera(e,  and  he  could  not  deny  it.  Hut  he  wished 
it  not  to  preponderale  hereafter,  w'""  the  reason  no  longer  conliiiueil. 
Krom  Ihe  nalure  of  man.,  we  may  be  sure  that  tliose  who  have  power  in 
their  Iriiids  will  not  give  it  up  while  they  can  retain  it.  On  the  contrary, 
we  know  that  they  will  always,  when  they  c.,ii,  rather  increase  it.  If 
the  Soiilliern  Stales,  therefore,  should  have  three-fourths  of  the  peiiple 
of  Aineri<'a  within  their  limits,  the  Northern  will  hold  fast  the  inajoriiy 
of  rei)resentatives.  One-fourth  will  govern  the  three-foiirlhs.  The 
Southern  Slates  will  complain  ;   but  they  may  complain  from  generation 


•■'-  Madison  Papers,  Elliot's  Debates, 
2d  eil.,  vol.  V,  pp.  21)3-294. 


"  See  tlie  remarks  of  Jliison,  infra, 
over  note  It,'). 

»*  Supra,  §  28,  note  1. 


?'■■'■] 


PROCKKUINGS    IN    CnNVIC.NTlON. 


38a 


til  fxt'iii'i'iition  witliout  redress.  L'lik'HS  soiuo  priuciplc,  therefore,  wliicli 
will  do  justice  to  them  hereiifter,  shall  lie  inserted  in  the  Coiistitulioii, 
(hs;iL!ri'e:ilil(!  !is  the  deehiratioii  wiis  to  him,  he  must  declare  he  eouUl 
tRither  vole  for  the  sj'stem  here,  nor  support  it  in  his  stiite. 

"Stnin<;  objections  had  lieen  drawn  from  the  danjrer  to  the  Atlantic 
itMcitsts  from  new  Western  States.  Oiiiilit  we  to  sacriflee  what  wo  know 
1(1  lio  ii;^lit  in  itself  lest  it  should  prove  favorable  to  states  which  are  not 
yit  in  existence?  If  the  Western  States  are  to  be  admitted  into  tlii! 
I  iiiiiM,  as  they  arise,  they  must,  he  would  repeat,  be  treated  as  ecjuals, 
ami  subjected  to  no  degrading  discriminations.  They  will  have  lliu 
siiiiie  pride,  and  other  passions,  which  we  have,  and  will  either  not  unite 
wiili  or  will  speedily  revolt  from,  the  I'nion,  if  they  are  not  in  all  re- 
sjiocts  jilaced  on  an  eipial  footing  with  their  brethren.  It  has  been  said, 
till  V  will  be  poor,  and  tillable  to  make  eipial  contributions  to  the  general 
tii'Msiirv.  lie  did  not  know  but  that  in  time,  they  would  bo  both  more 
iiiiimroiis  and  more  wealthy  than  their  Atlantii^  brethren.  The  extent 
ami  fi'itility  of  their  soil  made  this  probable;  and  tliouu'h  Spain  might 
for  a  time  deprive  them  of  the  natural  outlet  for  their  productions,  yet 
she  will,  because  she  must,  finally  yield  to  their  demands.  He  urged 
that  numbers  of  inhabitap'  'hough  not  always  a  precise  standard  of 
weiilili,  was  Hiillicii'iitly  so  for  every  substantial  purpose. 

"  Mr.  \Villiainson  was  for  making  it  a  duty  of  the  legislature  to  do 
what  was  right,  and  not  leave  it  at  liberty  to  do  or  not  to  do  it.  lie 
Miovi'il  lliat  .Mr.  Handolph's  proiiositioiis  bo  postponed  in  order  to  con- 
siilii' the  following  : — ^ '  Tliat  in  order  to  ascertain  the  alterations  that 
may  lia|)peii  in  the  population  and  wealth  of  the  several  stales,  a  census 
MJiall  br  taken  of  the  free  white  inliabilants,  ami  three-fifths  of  those 
of  other  descriptions,  on  the  first  year  after  this  government  shall  have 

liiTM  adopted,  and  every year  thereafter  ;   and  that  the  representa- 

lipii  bo  regulated  accordingly.'""' 

Tlie  (lclei,Mtos  from  Soutli  Carolina  then  moved  tliiu  slaves  slioulcl 
be  piiiced  upon  the  siiinc  footinjf  as  freeinen  in  the  iipporlioninent 
of  lefiresciitatioii ;  but  only  Dcliiwaro  ami  (ieoif^ia  snppoitetl  tlio 
j)i-iipiisition. 

(ioiivcrneur  Morris  again  insisted  that  tlie  original  States  should 
letain  llio  coiitrol  :  — 

"  If  the  western  peoph;  get  the  power  into  their  han<ls,  they  will  ruin 
the  Atlantic  interests."  " 


»  Elliot's    I)l•hiltl'^ 


2il  ('(1.,  vol.  V, 


■«>  Ibid.,  p.  '2>.)H  ;  «!r;ii-u,  nolo  29. 


384 


APPOItTIONMKNT. 


[chap.  VIII. 


The  general  sentiment  was,  however,  opposed  to  him. 

♦'  On  the  question  of  the  first  chiuse  of  Mr.  AVillianison's  motion,  as 
to  talviiig  a  cenaiis  of  tlie  free  iiiliabitnnts,  it  passivl  in  the  (idiriiiii- 
tive,  —  Massacinisotts,  Connecticut,  New  .lerscy,  I'oupHj'lvaMia,  Vir- 
jjinia,  North  Carolina,  ay,  G;  Delaware,  Maryland,  South  Carolina, 
(ieorftia,  no,  4."  '' 

"On  the  (pipstion  for  Jisreeiug  to  include  thrcc-flfths  of  the  hlacks  — 
Conni'cticut,  Vir<;inia,  North  Carolina,  (ieor;iia,  ay,  4  ;  Massaclmsetts, 
New  .Iprsey,  Pennsylvania,  Delaware,  Maryland,  South  Carolina, 
no,  (•)."  " 

In  tlie  couise  of  the  debate,  delegates  from  Mfissacliusetts  ami 
Pennsj-lvauia  had  expressed  a  fear  lest  their  eoiistitueiits  niiglit 
not  snhniit  to  the  rule  that  slave-owners  should  have  increased 
representation  for  tlieir  slaves.''® 

At  the  end  of  tlio  day,  Williamson's  motion  was  rejected  unan- 
imously.    On  the  next  <lay  — 

"Mr.  (iouverneur  Morris  moved  to  add  to  the  clause  empowering 
the  legislatu-e  to  vary  the  representation  according  to  the  principli'3  of 
wealth  and  numbers  of  inhabitants,  a  proviso,  '  that  the  Uixation  sliall 
be  in  projiortion  to  representation.' 

"  Mr.  Hutler  contended,  again,  that  representation  should  be  aceonl- 
ing  to  the  full  nunit)erof  iniiabitants,  including  all  tiie  blacks  ;  admitting 
the  justice  of  Mr.  (louvernenr  Morris's  motion. 

"  Mr.  IMason  also  admitted  the  justice  of  the  principle,  but  was  afniiil 
embarrassments  might  be  occasioned  to  the  legislature  by  it.  Jt  niiglit 
drive  the  legislature  to  the  plan  of  requisitions. 

"Mr.  (Jouverneur  Jlor'is  admitted  that  some  objections  lay  against 
liis  motion,  but  supposed  tlicy  would  be  removed  liy  restraining  the  nilo 
to  Oinrt  taxation.  With  regard  to  indirect  taxes  on  exjioiin  and  im- 
ports, a. id  on  consumption,  the  rule  would  bo  inapplicat)le.  Notwilli- 
standing  what  had  been  said  to  the  contrary,  he  was  persuaded  that 
the  imjjorts  and  consunq)tiou  were  pretty  nearly  equal  throughout  the 
Union. 

"  (ien.  Pinekney  liked  the  idea.  He  thought  it  so  just  that  it  eoiiKl 
not  be  objected  to,  but  foresaw  that  if  the  revision  of  llio  census  was 
left  to  the  discretion  of  the  legislature,  it  would  never  be  carried  into 
execution.  The  rule  must  be  fixed,  and  the  execution  of  it  enforced  liy 
the  Constitution.     He  was  alarmed  at  what  was  said  (by  Mr.  (rouvcr- 


»'  Ibl<l.,  p.  300. 
"  Ibid.,  p.  301. 


™  lliifuH  KiiiK  and  (touvornour  Mor- 
ris, ibid.,  pp.  300-301. 


§i;4.] 


PROCEEDINGS    IX   (U)XVKNTI<)N. 


38.") 


tn'iir  Morris),  yesterdaj',  concerning  tiie  ncfjrops.  Ifc  was  now  !i;i!iin 
alarnii'd  at  what  had  been  tiirown  out  concorniiig  tlie  taxiiij;  of  exports. 
South  Ciirolina  has,  in  one  year,  exported  to  the  anioiint  of  £(!00,()00 
stcrlinir,  all  which  was  tlie  fruit  of  the  labor  of  her  blacks.  Will  she 
lie  represented  in  proportion  to  this  amount?  (She  will  not.  Neither 
oiifrlit  she  then  to  be  subject  to  a  tax  on  it.  He  hoped  a  clause  would 
lie  inserted  in  the  system,  restraining  the  legislature  from  taxing  exports. 

"  Ml'.  Wilson  approved  the  principle,  but  could  not  see  how  it  could 
be  carried  into  execution,  unless  restrained  to  direct  taxation. 

'•  Mr.  (Jouverneur  Morris  having  ho  varied  his  motion  liy  inserting 
tlie  word  'direct',  it  passed  vem.  con.,  as  follows:  'provided  always 
tliiU  iliri'ot  taxation  ought  to  be  proportioned  to  representation.'  "  *" 

••  Mr.  Kllsworth,  in  onler  to  carry  into  effect  the  principle  established, 
moved  to  add  to  the  last  clause  adopted  by  the  House  the  words  follow- 
in^':  'and  that  the  rule  of  contribution  by  direct  taxation,  for  the  suji- 
jiort  of  the  government  of  the  I'nited  States,  shall  be  the  number  of 
ivliito  iiiliabitants  and  three-fifths  of  every  other  description,  in  the  sov- 
enil  st:ite8,  until  some  other  rule,  that  shall  more  accurately  as(:ort:i;n 
tlie  \ve;d;h  of  the  several  states,  can  be  devised  and  adopted  by  the 
leirislature.' 

"Mr.  ]$utler  seconded  the  motion,  in  order  that  it  might  be  com- 
mitted. 

"  Mr.  Randolph  was  not  satisfied  with  the  motion.  The  danger  will 
lie  revived,  that  the  ingenuity  of  the  legislature  may  evade  or  pervert 
the  rule,  so  as  to  perpetuate  the  power  where  it  shall  be  lodged  in  the 
liriit  instance.  He  proposed,  in  lieu  of  ^fr.  Kllsworth's  motion,  '  that, 
ui  order  to  ascertain  the  alterations  in  representation  that  may  be  re- 
quired, from  time  to  time,  by  changes  in  the  relative  circumstances  of 
the  st;ites,  a  census  shall  be  taken  within  two  years  from  the  first  meet- 
iiijr  of  the  general  legislature  of  the  United  States,  and  once  within 

the  term  of  every years  afterwards,  of  all  the  inhabitants,  in  the 

manner  and  according  to  the  ratio  recommended  by  Congress,  in  their 
resolution  of  the  18th  of  April,  ITH."!  (rating  the  blacks  at  three-fU'ths 
of  their  numbers),  and  that  the  legislature  of  the  I'nited  States  shall 
arnuiire  the  representation  accordingly.'  He  urged  strenuously,  that 
express  security  ought  to  be  provided  for  including  slaves  in  the  ratio 
of  representation.  He  lamented  that  such  a  species  of  property  ex- 
isted; but,  as  it  did  exist,  the  holders  of  it  would  re()uire  this  security. 
It  was  perceived  that  the  design  was  entertained  by  some  of  excluding 
slaves  altogether;  the  legislature,  therefore,  ouglit  not  to  be  left  at 
liberty. 

*o  Madison  rapors,  Elliot's  Deljates,  vol.  v,  ().  a02. 


38('. 


Al'l'OUTIONMKNT. 


[<'II,\I'.  VIH. 


"  Mr.  Kllswortli  withdraws  liis  iiiolioii,  and  seconds  that  of  Mr.  Hiiii- 
dolph. 

"  Mr.  Wilson  observed  that  less  umbrage  would,  perhaps,  bo  taken 
against  un  admission  of  the  slaves  into  the  rule  of  representation,  if  it 
shoidd  be  so  expressed  as  to  make  them  indirectly  only  an  ingredient  in 
the  rule,  by  saying  that  they  shoidd  enter  into  the  rule  of  taxation;  and 
as  representation  was  to  be  according  to  taxation,  the  end  would  lie 
equally  attained,  lie  accordingly  moved,  and  was  seconded,  so  to  niter 
the  last  clause  adopted  by  the  House,  that,  together  with  the  aiiieiid- 
ment  proposed,  the  whole  should  read  as  follows:  'provided  iihvny-i 
that  the  representation  ought  to  be  proportioned  according  to  diit'ct 
taxation;  and,  in  order  to  ascertain  the  alterations  in  the  direct  tiixa- 
tiou  which  may  be  required,  from  time  to  time,  by  the  changes  in  ihe 
relative  circumstances  of  the  states,  lli-siih-vil,  that  a  census  lie  talit'ii 
within  two  years  from  the  first  meeting  of  the  legislature  of  the  liiitid 

States,  and  once  within  the  term  of  every years  afterwards,  of  all 

the  inhabitants  of  the  United  States,  in  the  manner  and  according  to  the 
ratio  recommended  by  Congress  in  their  resolution  of  the  18th  of  Apr,!, 
178;i,  and  that  the  legislature  of  the  United  States  shall  proportion  tlie 
direct  taxation  accordingly.'  "  " 

"On  .Mr.  I'inckney's  motion,  for  rating  blacks  as  equal  towiiites,  in- 
stead of  as  three-lil'ths,  — 

"  South  Carolina,  Ceorgia,  ay,  2  ;  Massacluisotts,  Connecticut.  (  Dr. 
Johnson,  ay,)  New  .Jersey,  Pennsylvania,  (three  against  two,)  Dela- 
ware, Maryland,  N'iririnia,  North  Carolina,  no,  H. 

"  Mr.  Randolpli's  proposition,  as  varied  by  Mr.  Wilson,  being  read, 
for  taking  the  (juestion  on  the  whole,  — 

"  Jlr.  Cierry  urged  that  the  princiide  of  it  could  not  be  curried  into 
execution,  as  the  states  were  not  to  be  taxed  as  states.  With  rogiinl 
to  tuxes  on  imposts,  he  conceived  they  would  be  more  productive  wlu'io 
there  were  no  slaves,  than  where  there  were,  the  consumption  beini; 
greater. 

'•  Mr.  Ellsworth.  In  case  of  a  poll-fax,  there  would  be  no  didicnlty. 
Hut  there  would  probably  be  none.  The  sum  allotted  to  a  stale  nmy 
be  levied  without  difllculty,  according  to  the  plan  used  by  the  slato  in 
raising  its  own  supplies. 

"On  the  quosliou  on  the  whole  proposition,  as  proportioning  n'pie- 
sontation  fo  direct  taxation,  and  both  to  the  white  and  three-liftlis  of 
the  black  inhabitants,  and  recjuiring  a  census  within  six  years,  aud 
within  every  ten  years  afterwards, — 

«'  Ibid.,  pp.  303,  304. 


§  '■'  1-] 


PROCKKDING8    IN    CON\T?NTIOy. 


387 


"  Connecticut,  I'ennsylvania,  Maryland,  Virginia,  North  Carolina, 
(Iporsjiii,  ay,  <) ;  New  .leraey,  Delaware,  no,  2  ;  MassaehuBetts,  .South 
(':iniliMii,  divided."" 

"On  the  ((iiefttion  for  agreeing  to  the  whole  report,  as  amended,  and 
iiiiliiding  the  equality  of  votes  in  the  second  branch,  it  passed  in  the 
alliniiativc. 

"  Coimeeticut,  New  Jersey,  Delaware,  Maryland,  North  Carolina 
(Mr.  Spiiiglit,  no,)  ay,  •'> ;  Pennsylvania,  Virginia,  South  C'arolina, 
(Icorgia,  no,  1  ;  Massachusetts,  divided  (Mr.  (ierry,  Mr.  Strong,  ay; 
Mr.  King,  Mr.  (Jorham,  no). 

"The  whole,  thus  passed,  is  in  the  words  following,  viz.  : 

'•  I'i'.-idh'i'd,  That,  in  the  original  formation  of  the  legislature  of  the 
Triilfd  Slates,  the  first  branch  thereof  shall  consist  of  sixty-tive  iiii'in- 
bi'is.  of  wiiicii  iiiiinber  New  Hampshire  siiall  send  '<i  ;  Massachusetts,  )s  ; 
Hliddo  Island,  1  ;  Connecticut,  T) ;  New  York,  0  ;  New  .Jersey,  1  ;  IViiii- 
sylvaiiia,  «j  Delaware,  1  .  Maryland,  0;  Virginia,  10;  North  Carolina, 
,') ;  Soiitli  Carolina,  ii ;  (ieorgia,  ."!.  Uiit  as  the  present  situation  of  the 
sinks  may  probably  alter  in  tlie  number  of  their  inhabitants,  the  legis- 
l;itiiiH'  of  the  I'nited  States  shall  be  authorized,  from  time  to  time,  to 
!i|)|H)rlion  the  niiiiiber  of  representatives;  and  in  case  any  of  tlie  slates 
sli;iil  hereafter  be  divided,  or  enlarged  by  addition  of  territory,  or  any 
two  or  more  states  united,  or  any  new  states  createtl,  within  the  limits 
of  ilie  I'nited  States,  the  legislature  of  the  United  States  shall  possess 
:iiilli<irity  to  regulate  the  number  of  re])resentatives,  in  .nny  of  tiie  fore- 
};i)ing  eases,  upon  the  principle  of  their  number  of  inhabitants,  ae- 
t'ording  to  tlio  provisions  hereafter  mentioned;  provided,  always,  that 
iv|iicsentation  ought  to  be  proportioned  according  to  direct  taxation. 
Anil  in  order  to  ascertain  the  alteration  in  the  direct  taxation,  which 
ni:iy  be  recinired  from  time  to  time  by  the  changes  in  the  relative  cir- 
ciiiMsl;inces  of  the  states, 

'•  HisiilrciJ,  That  a  census  be  taken  witiiin  six  years  from  iL.  <lrst 
nucling  of  the  legislature  of  the  United  States,  and  once  wilhin  the 
tci'iii  >if  every  ten  years  afterwards,  of  all  the  inhabitants  of  the  United 
Stales,  in  the  manner  and  according  to  the  ratio  recommended  by  Cou- 
friiss  in  their  resolution  of  the  18th  day  of  April,  17k;5;  and  that  the 
li'iii-ilalure  of  the  United  States  shall  proportion  the  direct  taxation  ac- 
coniingly. 

"  Rrmlved,  That  all  bills  for  raising  or  appropriating  money,  and  for 
fixiii::  liie  salaries  of  ollicers  of  the  (iovernmeiit  of  the  United  .States, 
Bliall  iiriginate  in  the  first  branch  of  the  legislature  of  the  United  States, 


"  Madison  Papers,  Elliot's  Debutes,  vol.  v,  pp.  305-306. 


;588 


AProltTIOSMKNT. 


[chap,  vpi. 


1111(1  slmll  not  be  filtered  or  aineiidiMl  in  the  sppoiiil  branch  ;  niul  tli;;i  no 
iiioiioy  shall  bo  drawn  from  tho  piiidif  tri'iisury  but  in  purBuanco  of  iip- 
liropriiitions  to  be  <)ri<j;inated  in  the  (Irst  liiancii. 

"  lii'Mlfcil,  That,  in  the  necoiid  brancli  of  the  lojrislatnre  of  the  I'ni- 
ted  States,  each  Htate  Hliall  have  an  einml  vote."  " 

In  this  form,  tlio  iiiiittcr  was  referred  to  the  committee  of  detiiil. 
Immediately  before  the  reference,  — 

"Mr.  fioiiverneiir  Morriw  hoped  tlie  oommittee  would  strike  out  the 
whole  of  the  elaiise  proportioning  direct  taxation  to  representation.  He 
had  only  meant  it  as  a  bridji;e  to  assist  iis  over  a  certain  gnlf ;  iiaving 
passed  tlie  gulf,  tlie  bridge  may  be  removed.  He  thought  tlie  principle 
laid  down  with  so  much  strictness  liable  to  strong  objections."" 

Tlie  committee,  liowcver,  did  not  assume  the  responsibility  of 
disturbing  the  comiiromise.  In  their  report  the  resolution  wiis  re- 
tained but  separated.     Section  4  of  Article  IV^  is  as  foUow.s:  — 

"  As  the  proportions  of  numbers  in  different  states  will  niter  from 
time  to  time  ;  as  some  of  the  states  may  hereafter  be  divided  ;  a.s  otli- 
ers  may  be  enlarged  by  addition  of  territory ;  as  two  or  more  states 
may  be  united ;  as  now  states  will  be  erected  witliin  tlie  limits  of  the 
United  States,  —  the  legislature  shall,  \i\  each  of  tiipse  cases,  rcjrulate 
the  number  of  representatives  by  the  number  of  inhabitants,  according 
to  the  provisions  hereinafter  made,  at  the  rate  of  one  for  every  forty 
thousand."  *^ 

Sections  3  and  4  of  Article  VII  read:  — 

"  The  proportions  of  direct  taxation  shall  be  regulated  by  tiie  wiiolc 
number  of  white  and  other  free  citizens  and  inhabitants  of  every  nge, 
sex,  and  condition,  iiichuliiig  tliose  bound  to  servitude  for  a  term  of 
years,  and  tiiree-fifths  of  all  other  persons  not  comprehended  in  the 
foregoing  description  (except  Indians  not  paying  taxes)  ;  which  nuni- 
lier  shall,  witliin  six  years  after  the  first  meeting  of  the  logislatnre, 
and  within  the  term  of  every  ten  yc'irs  afterwards,  be  taiien  in  such 
a  manner,  as  the  said  legislature  shall  direct."  " 

"  No  tax  shall  be  laid  l)y  the  legislature  on  articles  exported  from 
any  state ;  nor  on  the  migration  or  importation  of  such  persons  as  the 
several  states  shall  think  proper  to  admit ;  nor  shall  such  migration  or 
importation  be  prohibited."*' 


"  Ibid.,  pp.  Uifi,  317.  «  Ibid.,  p.  377. 

«♦  Ibid.,   pp.    3fi2,   3(13.     Carroll  of  <«  Ibid.,  p.  379. 

Maryland  concurred  with  him.  *'  Ibid. 


V'^-] 


rilOCKKDINOH   IN    CONVENTION. 


389 


III  u  .subsequent  dobatc, — 

•'  .Mf.  Kiii^  iiski'd  what  wiih  tlie  preciue  meaning  of  direct  taxation. 
No  (iiio  imswiTt'd."*' 

Al'tcrwiirds  I^utlier  Martin  said: 

"Tlif  power  of  tiisation  is  moat  likely  to  lie  criticised  by  the  public. 
Direct  taxation  should  not  be  used  but  in  cases  of  absolute  necessity ; 
and  then  the  states  will  be  the  best  judjjes  of  the  mode.  Ho  therefore 
moved  the  following  addition  to  article  7,  sect.  3  :  — 

'•'And  whenever  the  legislature  of  the  I'nited  .States  shall  find  it 
lu'cessary  that  revenue  should  be  raised  by  direct  taxation,  having  ap- 
portioned the  same  according  to  the  above  rule  on  the  several  states, 
ri'iiuisilions  shall  be  made  of  the  respective  states  to  pay  to  the  Conti- 
nental treasury  tlieir  respective  quotas,  within  a  time  in  the  said  requi- 
HJIioiis  s])ccilied  ;  and  in  case  of  any  of  the  states  failing  to  comply  with 
sneii  r((iuisitions,  then,  and  then  only,  to  devise  and  pass  acts  directing 
till'  mode,  and  authorizing  the  collection  of  the  sarn'!.' 

"  Mr.  M'llenry  seconded  the  motion.  There  was  no  debate ;  and, 
on  the  (piestion,  — 

"  New  .lersey,  ay,  1  ;  New  Hampshire,  Connecticut,  Pennsylvania, 
Delaware,  Virginia,  North  Carolina,  South  Carolina,  (leorgia,  no,  8; 
Maryland  divided  (.Jenifer  and  Carroll,  no)."** 

.Jdlin  Laiigdon,  of  New  Ilainpsiiire,  evidently  anticipated  that 
(lirt'ct  taxation  would  be  frequent,  lie  said  that  he  "  was  not 
lure  when  New  Hampshire  Wiis  allowed  three  nienibers.  It  was 
more  than  her  share  ;  he  did  not  wish  for  them."  ^^ 

On  the  consideration  of  the  rej)ort  of  the  committee  of  detail, 
a  few  changes  wore  made  in  the  phraseology ;  and  it  was  uiuini- 
inously  agreed  that  each  State  should  have  at  least  one  vote  in 
tlie  lower  house.®'  This  was  suggested  by  a  similar  provision  in 
the  Constitution  of  Massachusetts  concerning  the  representation 
of  towns.^2 

At  the  close  of  the  Convention,  the  minimum  of  representation 
was  reduced  to  thirty  thousfind,  upon  the  recommendation  of 
Wasliington ;  who  then  made  on  this  subject  his  only  speech  be- 
fiirc  the  Convention,  and  asked  for  the  amendment  in  order  to 


"  Madison  Papers,  Elliot's  Debates, 
vol.  V,  p.  451. 
"  Iljitl.,  p.  453. 
»  Ibid. 


"  Ibid.,  p.  394. 

6'^  .See  Wiltion's  remark,  ibid.,  p.  281, 
MasHacliiisctts  Constitution  of  1780, 
Article  II,  eh,  I,  Sec.  3. 


890 


APPORTIONMENT. 


[CHAl-.  Vlll. 


obviiito  ol)jo<!tions  wliioli  ho  tliouffhl  would  prejudice  the  siicci'ss 
of  the  luciisuie  whoa  suljiuitlod  to  the  jjcoplo.'^  It  is  coiwe- 
qucnlly  clciir  that  tlio  coinproniiHo  was  iniidi!  in  order  to  protect 
piopcity  of  every  kind,  as  well  as  slaves,  from  excessive  taxatidii 
iuiimsi'd  by  u  majority  who  would  escape  the  liurdeii.  It  w:w 
moved  by  a  delegate  from  tlie  rich,  free  State  of  Pennsylvania, 
who  had  expressed  his  fear  lest  the  new  States  in  the  West  might 
use  their  numerical  advantage  to  oppress  their  richer  fellow-citi- 
zens on  the  Atlantic  coast  ;'^  and  thus,  as  said  by  Hamilton,  in 
The  Federalist,*^  the  door  was  effectually  shut  "  to  iiartiality  or  d]*- 
pression.  Tlie  abuse  of  this  power  seems  to  have  been  providtid 
against  with  guarded  circumspection." 

Five  of  the  States  did  not  consider  this  protection  satisfactory. 
And  upon  her  ratification  Massachusetts  proposed  the  following 
amendment,  in  which  New  York,  New  Hampshire,  Rhode  Island 
and  South  Carolina  concurred :  — 

"That  Coiifiress  do  not  lay  direct  taxes  Init  when  the  moneys  iiris- 
ing  from  tlie  iin])ost  or  excise  are  insullicient  for  the  public  exigencies, 
nor  then  uutil  Congretis  simll  have  lirst  inude  a  roquisitiun  upon  the 
States  to  assess,  levy,  and  jay,  their  respective  proportions  of  sueh 
recinisitioii,  agreeably  to  tlie  erins  lixed  in  tiie  said  Constitution  in  micli 
way  and  manner  as  the  legi':iatnrc8  of  the  {States  shall  think  best."" 

Madison  opposed  this  amendment  as  "calcidated  to  imjiair  the 
power,  only  to  be  exercised  in  extraordinniy  emergencies."*'  lie 
said:  "If  extraordinary  aids  for  the  public  safety  shall  not  he 
necessary,  direct  tiixes  will  not  be  necessary  "  ;  and  that  the  pro- 
I)osed  amendment  was  needless,  since  "every  State  which  chuses 
to  collect  its  own  quota  may  always  jjievent  a  Federal  collection, 
by  keeping  a  little  betoreband  in  its  finances,  and  making  its  pay- 
ment at  once  into  the  Federal  treasury."  ^ 

At  that  time,  the  system  of  taxation  in  the  different  States  wiis 
various.  All  taxed  land,  with  its  improvements ;  some  taxed  nil 
personal  property,  with  a  few  exemptions ;  some  taxed  inipnrt-s 


'■''Ibid.,  p.  555. 

"  Supra,  over  notes  27,  29,  3fi. 

•'  No.  xxxvi. 

w  Elliot's  Debates,  vol.  1,  p.  322. 

*'  Cliief-Jiutice  Fuller  iu  I'ollmik  v. 


Fanners'  Loan  and  Trust  Co.,  15S  I'.  S., 
G01,i;l'0. 

'»  Madison  to  Colonel  Tlioiupson, 
Jan.  29,  ITsn-,  republished  l>.v  Mr. 
Worlhington  C.  Ford  (51  A.  L.  J.,29'2), 
325,  326,  329,  335. 


§'•'■*•] 


I'UOCKKDIMiS    IN    CONVKNTION. 


891 


ami  s|iecific  artii'li.'s  of  persoiisil  piojicrty,  luid  some  imposed  a  tax 
on  ociiipations,  inuiisuied  by  tliuir  piolits.''*' 

A  survey  of  these  proueediiijjH  Loiiseiiiieiilly  shows  the  accuracy 
of  thii  recent  Htatemeiit  by  ('liief-JusU(^e  Fuller:  — 

"Tlie  men  who  framed  nnd  ndoptcd  that  iiiHtniin(>nt  Imd  junt  cnierf^ed 
fnnn  the  Btnig{{le  for  iudepuiideiife  whoso  rallyiii<r  cry  hiul  Ix-cn  that 
'taxation  and  rcprescsntutioii  go  tojjether.'  'V\w  niotlicr  country  had 
tau<,'ht  tho  colonists,  in  the  contests  wa^ed  tocstahlisli  tliat  taxes  could 
mil  lie  imposed  liy  tiie  sovereign  except  ns  they  were  granted  by  the 
I't'in'i'seiitutives  of  the  realm,  tiiat  self-taxation  constituted  the  main 
Hcemily  against  oppression.  As  Hm'ke  ileclared,  in  his  speech  on  Con- 
oiliation  with  America,  the  defenders  of  tho  excellence  of  the  Hnglish 
Coiistilution  'took  infinite  pains  to  inculcate  as  a  fundamental  princi- 
plp,  that,  in  all  monarchies,  the  people  must,  in  effect,  themselves,  me- 
diately or  immediately,  possess  the  power  of  granting  their  own  money, 
<ir  no  shadow  of  liberty  coidd  subsist.'  'I'he  principle  was,  that  the  con- 
sent of  those  who  were  expected  to  pay  it  was  essential  to  the  validity 
of  any  tax 

"The  States  were  about,  for  all  national  purposes  embrnccd  in  the 
Constitution,  to  become  one,  nulled  under  tho  same  sovereign  author- 
ity, and  governed  by  the  same  laws.  lint,  as  they  still  retained  their 
jurisdiction  over  all  persons  and  things  within  their  territorial  limits, 
except  wliere  surrendered  to  the  general  government  or  restrained  by 
the  Constitution,  they  were  carefid  to  see  to  it  that  taxation  and  rep- 
resentation shouUl  go  together,  so  that  the  sovereignty  reserved  should 
not  he  impaired,  and  that  when  Congress,  and  especially  the  House  of 
Representatives,  where  it  was  specitically  provided  that  all  revenue 
bills  nuist  ori{;inate,  voted  a  tax  upon  pro|)erty,  it  should  bo  with  the 
consciousness,  and  under  the  responsibility  that  in  so  doing  tho  tax  so 
Vdleil  would  proportionately  fall  \ipon  the  immediate  constituents  of 
tiiose  who  imposed  it. 

"  Jb)re  than  this,  by  the  Constitution  the  States  not  only  gave  to  the 
Nation  the  concurrent  power  to  tax  persons  and  property  directly,  but 
they  surrendered  their  own  power  to  levy  taxes  on  imports  and  to  regu- 
late commerce.  All  the  thirteen  were  seaboard  States,  but  they  varied 
in  maritime  importance,  and  differences  existed  between  them  in  popu- 

'"  Soo  Report  on  Direct  Taxes,  by  E.  E.  A.  SeliKnian  on  tho  Ineonio  Tax 

01ivi>rWoleott,  Secretary  of  the  Trens-  in  tlio  Aniericnu  Colonics  mid  States, 

ury,  Dee.   14,   1796  (Annuls  of   Cou-  Pol.  8o.  Q.,  vol.  x,  p.  221.   Foster  and 

grcss,  1795-1797,  pp.  2(i;J5-2713.    Prof.  Abbot  on  tho  Ineome  Tax,  pp.  1-2. 


392 


AIM'OKTIONMENT. 


[chap.  VIII. 


lation,  ill  wealth,  in  the  character  of  property,  and  of  business  interests. 
Moreover,  thej'  looked  forward  to  tlie  coiniiiij  of  new  States  from  the 
great  West  into  tiie  vast  empire  of  tlieir  anticipations.  So  when  tlie 
wealthier  States  as  between  themselves  and  their  less  favored  asso- 
eiiites,  and  all  as  between  themselves  and  those  who  were  to  come, 
gave  up  for  the  commou  gooil  the  great  sources  of  revenue  derived 
through  commerce,  they  did  so  in  reliance  on  the  protection  afforded  by 
restrictions  on  the  grant  of  power."  *" 

"  In  the  light  of  the  struggle  in  the  convention  as  to  whether  or  not 
the  new  Nation  shoidd  be  empowered  to  levy  taxes  directly  on  the  indi- 
vidual until  after  the  States  had  failed  to  respond  to  refiuisitions  —  a 
struggle  which  did  not  terminate  until  the  amendment  to  that  effect, 
proposed  by  Jlassachusetts  and  concurred  in  by  South  Carolina,  Now 
Hampshire,  New  York,  and  Uhode  Island,  had  been  rejected  —  itwoiikl 
seem  beyond  reasonable  (piestion  that  direct  taxation,  taking  the  place 
as  it  did  of  re(iuisitious,  was  purposely  restrained  to  apportionment  ac- 
cording to  representation,  in  order  that  the  former  system  as  to  ratio,'' 
which  had  been  proposed  by  Congress  as  an  amendment  to  the  Articles 
of  Confederation,  and  ratitied  by  eleven  States,  "might  be  retained 
while  the  mode  of  collection  was  changed."  °' 

' '  The  reasons  for  the  clauses  of  the  Constitution  in  respect  of  direct 
taxation  are  not  far  to  seek.  The  States  respecti"ely  possessed  ple- 
nary [lowers  of  taxation.  They  could  tax  the  property  of  their  citizens 
in  such  manner  and  to  such  extent  as  tl  :'y  saw  lit ;  tliey  had  nnre- 
stricted  powers  to  impose  duties  or  imi)()st,  on  imports  from  aliroiid 
and  excises  on  manufactures,  consunialde  connnodilii's,  or  otherwise. 
They  gave  up  the  great  sources  of  revenue  derived  from  commerce ; 
they  retained  the  concurrent  power  of  levying  excises  and  duties  if 
covering  anything  otiier  than  excises;  but  in  respect  of  tiiem  the  rantre 
of  taxation  was  narrowed  by  the  power  granteil  over  interstate  eoii- 
nierce,  and  by  the  danger  of  being  put  at  disadvanttigc  in  dealing  witli 
excises  on  manufactures.  They  retained  the  power  of  direct  taxation, 
and  to  that  they  looked  as  their  chief  resource  ;  but  even  in  respect  of 
that,  they  granted  the  concurrent  power,  and  if  the  tax  were  placed  liy 
both  governments  on  the  same  subject,  the  claim  of  the  United  States 
had  preference.  Therefore,  they  did  not  grant  the  power  of  direct  tax- 
ation, without  regard  to  t' e '■  own  condition  and  resources  rs  Stales; 
but  they  granted  the  power  of  apportioni'd  direct  taxation,  a  prnver 
just  as  ctlicacious  to  serve  the  needs  of  the  general  govcrinnent,  but 


o"  Polloclv   r.    Farmers'    Loan    and 
Trust  Co.,  158  U.  S.,  4'2U,  550-557. 


01  Ibid.,  not,  (113-020. 


§  ''•'•] 


MANNER    OF   APPORTIONMENT. 


mi 


sicuiiiig  to  the  States  the  opportunity  to  pay  the  amount  apportioneil, 
ami  to  recoup  from  their  own  citizens  in  tlie  most  feasible  way,  and  m 
liiiiiiiony  with  their  systems  of  local  self-jrovernment.  If,  in  the  chiinges 
of  wt'iilth  tind  jjopulation  in  particular  States,  ai)portionment  produced 
iinM|M!ility,  it  was  an  ineqtmlity  stipulated  for,  just  as  the  equal  repre- 
soiitiition  of  tiie  States,  however  small,  in  the  Senate,  was  stipulated 
for.  The  Constitution  ordains  adirmatively  that  each  State  shall  have 
two  iiu'inhcrs  of  that  body,  and  negatively  that  no  State  siuUl  by  amend- 
inciil  lie  deprived  of  its  equal  suffratte  in  the  Senate  without  its  consent. 
'I'lio  Constitution  ordains  atlirmativcly  that  representatives  and  direct 
taxes  shall  be  apportioned  among  the  several  States  according  to  mnn- 
liiTs,  and  negatively  that  no  direct  tax  shall  be  laid  unless  in  proportion 
to  till"  enumeration. 

"  The  founders  anticipated  that  the  expenditures  of  the  States,  their 
counties,  cities  and  towns,  would  chietly  be  met  by  direct  taxation  on 
iU'ciiuMiluted  property,  while  they  exi)ected  that  tiiose  of  the  Federal 
government  would  be  for  the  most  part  met  by  indirect  taxes.  And  iu 
order  that  the  power  of  direct  taxation  by  the  general  government 
should  not  be  exercised  except  on  necessity;  and,  when  the  necessity 
aio.se,  should  lie  so  exercised  as  to  leave  the  States  at  liberty  to  dis- 
cliaifre  their  respective  obligations,  and  should  not  be  so  exercised,  un- 
fairly and  discriminatingly,  as  to  particular  States  or  otherwise,  by  a 
mere  Tuajority  vote,  jjossibly  of  those  whose  constituents  were  inten- 
tionally not  subjected  to  any  part  of  tlie  burden,  the  (lualilied  grant 
was  made."" 

§  <t5.    Maimer  of  Apportioiiinont. 

The  first  iip[inrti()iiiiient  was  made  by  the  ("uiistitiitioii  itself  and 
was  assunicd  to  he  upon  siihstantiaily  the  same  Irisis  as  it  fixed 
for  all  t'liturc  apportioutncuts,  with  an  cxtia  allowance  to  (Jeorgiii 
on  aeeomit  of  tiie  rapid  increase  of  lier  jiopiilation.' 

The  apportioiinieut  of  direct  taxation  is  easy.  It  is  made  by 
taking  the  aggregate  of  the  poi)ulatioii  iu  all  the  States  according 
to  tlie  constitutional  rule,  iisccitaiuing  the  proportion  of  this 
l)i>]mlatioii  iu  each  State  to  that  of  the  whole,  and  then  dividing 
tiie  gross  amount  of  tlie  tax  by  tiie  ratios  thus  ohtuiiied.  Since 
a  sum  of  money  is  capable  oi  division  down  to  a  fraction  of 
II  lent  \vhi(di  is  too  small  for  cousidcratiou,  there  is  no  dilliculty 
ill  the  process.     A   man,  liowever,  cannot  he  subdivided.     Conse- 


^''  Polloek  r.   Fanners'    Loan    an<l 
Trust  Co.,  158  U.  S.,  GOl,  O'iO-liai. 


§  cn.  1  Madison  Papers,  Elliot's  De- 
bates, '2d  ed.,  vol.  v,  p.  300. 


04 


API'ORTIOXMENT. 


[CHAl'.  VIII. 


qnently,  ,\ny  scheme  of  apportionment,  after  the  cletermiiiiitioii  of 
Ihi)  amount  of  popnhition  wliich  shall  be  entitled  to  one  rui^nsiii- 
tative,  creates  a  difficulty  by  the  existence  in  almost  every  Statf. 
of  several  thousands  of  peraons,  who  constitute  a  fraction  of  tliat 
number,  and  for  whose  rejireseutation  provision  should  be  made. 
Different  methods  of  providing  for  these  Tractions  have  been  con- 
sidered and  adopted.  The  first  appoi'tionment  bill,  which  was 
introduced  in  the  House  of  Representatives  in  1700,  gave  ouu 
representative  for  every  30,000  inhabitants,  and  left  the  reiimiiiing 
fractions  in  the  several  States  unrepresented.  The  bill  psisscd  the 
House  in  this  form  and  was  amended  in  the  Senate  by  allowing 
additional  representatives  to  the  States  having  the  largest  frac- 
tions. 'J'he  House  finally  concurred.  The  history  of  the  discus- 
sion is  thus  stated  by  Chief-Justice  Marshall:  — 

"This  bill  as  origiually  introduced  into  the  liousc  of  representatives, 
gave  to  each  state  one  member  for  every  thirty  thousand  persons.  On 
a  motion  to  striive  out  tlie  mnnber  thirty  thousand,  the  debate  turned 
chiefly  on  the  policy  and  advantage  of  a  more  or  less  numerous  house 
of  representatives ;  but  with  the  general  arguments  suggested  by  the 
subject,  were  interspersed  strong  and  pointed  allusions  to  the  inoiisures 
of  the  preceding  Congress,  which  indicated  much  more  serious  hostility 
to  the  administration  than  had  hitherto  been  expressed.""  "After  a 
long  and  animated  discussion,  the  amendment  was  lost ;  as  were  also 
other  umendnicnts  wliich  were  severally  proposed,  for  inserting  bctweea 
the  words  '  tiiirty,'  and  'thousand,'  the  words  five,  four,  and  three; 
and  the  bill  passed  in  ii^  original  form.  In  the  senate,  it  was  anieiuled 
by  changing  the  ratio  so  as  to  give  one  representative  for  every  thirty- 
three  thousand  persons  in  each  slate  ;  but  this  amendment  was  disiigreed 
to  by  tiie  house  of  representatives ;  and  each  house  adhering  to  it* 
opinion,  the  bill  fell.  The  argument  wiucli  operated  in  the  scuiili'  is 
understood  to  have  been,  the  great  amount,  and  the  inequality  <it'  un- 
represented fractions,  whicii  were  tlie  result  of  the  ratio  originally  |iro- 
poscd ;  a  circumstance  which  pressed  with  peculiar  weight  on  the  small 
states,  where  the  fraction  could  not  be  distributed  among  several  mem- 
bers. A  bill  was  ag.".in  introduced  into  the  house  of  representatives 
under  a  different  title  and  in  a  new  form,  but  without  any  change  in  its 
substantial  provisions.  After  a  debate  in  which  the  iue(iuality  and  in- 
justice of  the  fractions  produced  by  the  ratio  it  adopted  was  stronnly  in- 
sisted on,  it  passed  that  house.     In  the  senate,  it  was  again  amcuded, 

»  MarshuU's  Lite  of  Washlugtou,  vol.  v,  p.  319. 


§  '!'••] 


MANNEU    OK    Ari'OUTloN.MICNT. 


896 


iKit  liv  ii'diioinj;,  but  l>y  oiilarj^infi;  the  nuinher  of  ropri'senlntiv'es.  Tlie 
(  oiisiitiitioii  of  the  riiitfd  Stsites  declares  thiit  '  represeutalives  ami 
dirt'cl  taxi'8  shall  be  apportioned  aiiiong  the  several  itates  which  may 
lie  included  within  this  union  accorditij?  to  tlieir  resptntive  niiinliers;' 
ami  tiiat  '  the  number  of  representatives  shall  not  exceed  one  for  every 
thirly  thousand,  but  each  state  shall  have  at  least  one  representative.' 
(diistruing  the  constitution  to  authorize  a  process  by  which  the  whole 
miiiilierof  representatives  should  be  ascertained  on  the  whole  population 
of  tlie  United  States,  and  afterwards  '  ai)portioned  amoiii!;  the  several 
states  accoriling  to  their  respective  numbers,'  the  senate  applied  the 
lunnlicr  tiiirty  thousand  as  a  ilirinor  to  tlie  total  population,  and  taking 
tlic  ijiiotii'iil  which  was  one  hundred  and  twenty,  as  the  number  of  rep- 
nsi'iitatives  given  bj'  the  ratio  which  had  been  adoi)ted  in  the  house 
where  the  bill  had  originated,  they  apportioned  that  uundier  among  the 
several  states  by  that  ratio,  until  as  many  representatives  as  it  would 
give  were  allotted  to  each.  The  residuary  members  were  then  distri- 
IhiIimI  among  the  states  having  the  highest  fractious.  AVithout  profess- 
iiiir  the  principle  on  which  this  apportionment  was  jn.ade,  the  amendment 
of  the  senate  merely  allotted  to  the  states  resi)eetively,  the  number  of 
nn'riiliers  which  the  process  just  mentioned  would  give.  I'he  residt  was 
a  more  equitable  apportionment  of  representatives  to  population,  and  a 
still  luore  exact  accordance,  than  was  found  in  the  original  bill,  with 
tlie  prevailing  sentiment,  which,  both  within  and  without  doors,  seemed 
to  rei|iiire  that  the  popular  branch  of  the  legislature  should  consist  of 
as  many  members  as  the  fundamental  laws  of  the  government  would 
ailiiiit.  If  the  rule  of  construing  that  instrument  was  correct,  the 
luiiriidiiient  removed  objections  which  were  certainly  well  founded,  and 
was  not  easily  assailable  by  the  advocates  for  a  numerous  representative 
iiiidy.  lint  the  rule  was  novel,  and  overturned  opinions  which  had  been 
jiciierally  assumed,  and  were  supposed  to  be  settled.  In  one  branch  of 
the  legislature  it  had  already  been  rejected;  and  in  the  other,  the  nia- 
jniity  ill  its  favour  was  only  one.  In  the  house  of  representatives,  the 
aiii'.'iidiiieiit  was  supported  with  considerable  ingenuity.  After  au 
earnest  debate,  however,  it  was  disagreed  to.  and  a  conference  took 
lihire  without  producing  an  accommodation  among  the  members  com- 
li'i-irig  the  committee.  Hut  finally,  the  house  of  representatives  re- 
(rilnl  from  their  disagreement;  and.  by  a  majority  of  two  voices,  the 
hill  passed  as  amended  in  the  si'iiate."' 

Tlie  division  in  Congress  mi  tlie  suhjcct  was  geograpliiciil.     'J'lie 

Southern  States  voted  against  it,  and  the  Kortliern  in  its  favor.* 

'' MiirHluill's    Life  u(    AVushlugtuii,  *  Story  on  the  Constitutlou,  5lh  ed., 

vol.  V,  pp.  320-323.  §  081. 


39G 


ai'1'oi!th)N'.mi:nt. 


[chap.  viir. 


Tlif  cabinet  dividi'd  upon  tlie  propriety  of  tlie  approval  of  tiiu 
bill.  This  division  also  was  upon  geographical  lines.  Tlie  Sec- 
retary of  State,  Jefferson,  and  Attoruey-(ieueral  Randolph,  both  of 
whom  were  from  \'irginia,  exjjressed  their  <Usapp!o\ al.  The  Sec- 
retary of  llie  Treasury,  Mamiltou  of  New  York,  and  the  Secretiiry 
of  War,  Knox  of  Msussachusetts,  approved  the  same. 

President  Washington,  who  was  from  Virginia,  vetoed  the 
measure  and  returned  it  with  two  objections:  — 

"1.  Tliat  the  C'oustitulion  has  prescribed  that  representatives  shall 
be  apportioned  among  tlie  several  States  aeeordiug  to  their  respective 
nuin'oera;  and  there  is  no  proportion  or  divisor  which,  applied  to  the 
respective  members  of  the  States,  will  yield  the  uiimber  ami  allotiiu'nt 
of  representatives  proposed  by  the  bill.  2.  Tiie  Constitution  has  also 
provided  that  the  number  of  representatives  shall  not  exceed  one  for 
thirty  thoiisaiiil,  which  ri'striction  is  by  the  context,  and  by  fair  ami 
obvious  construction,  to  be  applied  to  the  several  and  respective  miiii- 
bers  of  the  States,  and  the  bill  has  alloted  to  eight  of  the  States  uioie 
than  one  for  thirty  tlioiisantt."' 

Of  this  Judge  Story  saiil :  — 

"The  second  reason  assij^ned  by  the  I'resident  against  the  bill  was 
well  founded  in  fact,  and  entirely  conclusive.  'I'lie  other,  to  say  llie 
least  of  it,  is  as  open  to  question  as  any  ore  which  can  well  be  imag- 
ined in  a  case  of  real  difliculty  o{  construction.  It  assumes,  at  its  basis, 
that  a  common  rali(j.  or  divisor,  is  to  be  taken  and  ap|)lied  to  eaeli 
State,  let  the  fractions  and  ine(iiialities  left  be  whatever  they  may. 
Now,  this  is  a  plain  departure  from  the  terms  of  the  Constitution.  It 
is  not  there  said  that  any  such  ratio  shall  be  taken.  The  language  is, 
that  the  representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  that  is,  acc(ndiug  to  the  ])ropor- 
tion  of  the  whole  population  of  each  State  to  the  aggregate  of  all  the 
States.  To  apportion  according  to  a  ratio  short  of  the  whole  nunilM-r  in 
a  State,  is  not  an  apportionment  accoi'ding  to  the  respective  nuiiibers 
of  the  State.  If  it  is  said  that  it  is  iinpracticabh'  to  follow  the  meaning 
of  the  terms  literally,  that  may  be  admitted;  but  it  does  not  follow 
that  they  are  to  be  wholly  disregarded,  or  language  substituted  essi'ii- 
tially  different  in  its  import  and  effect.  If  we  must  dejiart,  we  must 
depart  as  little  as  practicable.  AVe  are  to  act  on  the  doctrine  of  c''/  /  Mi, 
or  come  as  nearly  as  possible  to  the  rule  of  the  Constitution.  If  we 
are  at  liberty  to  adopt  a  rule  varying  from  the  terms  of  the  Constitution, 

'^  Mursliall's  Life  of  WaHlilnglim,  opUiion  Is  printed  in  tlie  aiipiMicli-t  to 
vol.  v,  pp.  a'2;!-;i24,  note.     Jefferson's      tills  cliuptcr.     Infra,  pp.  424-130. 


,o5.] 


JUNNKIt    <>I''    Ari'OKTIONMKNT. 


auT 


arjriiiiijj;  uh  inronretiii'iiti,  tiieii  it  is  clearly  just  !is  open  to  otlii-rs  to 
reiison  on  the  other  side  from  opposing  inconvenience  and  injustice."  ' 

'rwd-thirds  of  the  House  failed  to  pass  the  bill  over  the  Presi- 
dent's veto,  and  it  was  consequently  lost. 

It  was  then  believed  that  the  rule  of  ai)portionnu'nt  had  been 
tiinilly  ilcterniined.''  Until  1842,  this  rule  still  prevailed,  and  on 
eucli  apiiortionment  fractions  were  left  unre{)resented.  It  was, 
liiiWL'VLi',  attacked  in  the  Senate  in  18;!2  in  an  able  report  by  l)an- 
ii'l  Webster,  with  whom  Edward  Everett,  tiien  in  the  House, 
concurred.'* 

This  rei)orh  did  not  become  a  basis  of  apportionment  at  that 
time,  but  it  convinced  the  peo[)le ;  and  the  rule  which  it  approved 
WMs  actually  adopted  as  the  basis  of  tlie  Cougrcssioiial  apportion- 
mentof  1842.  Since  then  it  has  been  the  practice  of  the  conunittees 
(if  Coufrrcss,  when  preparin<f  apportionment  bills,  after  dctermin- 
iiiir  the  maximum  amount  of  population  entitled  to  one  representa- 
tive, to  refer  the  matter  to  the  Secretary  of  the  Interior  to  draft 
a  scheme  of  apportionment  by  the  a|)plication  of  this  rule  after 
the  population  is  ascertained  l)y  the  last  census.  And  several  State 
constitutions  require  that  apportionments  of  members  of  their 
legislatures  be  similarly  made." 

The  rule  is  to  determiue  the  amount  of  the  jiojjulation  which 
shall  be  entitled  to  one  representative  in  Congress,  aud  after  liav- 
i!i<,r  ;illo\ved  a  representative  to  each  of  these  nund)ers,  to  allow  to 
every  State  an  additional  member  for  each  fraction  of  its  numbers 
exci'cilinn;' one-lialf  of  the  ratio,  rejecting  from  eonsidcratiou  the 
siiiallcr  fractions  ;  i"  and  to  leave  to  the  States  the  task  of  dividing 
tlu'insclves  into  Congressional  districts."  Tlie  power  of  Congress 
to  legislate  upon  the  8td)ject  has  never  been  questioned. '- 


'  Story  on  the  ConBtltutioii,  5th  od., 

■  Kinvlcon  the  CoiiHtiliilion,  p.  43; 
Miirsliiiirs  Lifo  of  WasliiiiK'ton,  vol. 
V,  1).  ;rji. 

'  Tills  report  Is  priiitcil  In  the  Ap- 
pi'iidix  111  tills  chapter,  infra,  pp.  430- 
4til.  Si'o  iilso  Kilwnril  Everotl'a  speech 
in  till"  Iloiise,  May  17,  1H32. 

''  Ki'Mts  Conim.,  vol.  I,  p.  2,30  ;  Story 
on  till"  Constltullon,  Sth  otl.,§  (187,  pp. 


41),")  ul2  aud  notes  ;  Peopln  cj;  rel.  C.ir-      531*,  (ill). 


ler  r.  Rlee,   135  N.  Y.,  473,  rii)l-.')02. 

>»  Kent's  Comm.,  vol.  1,  p.  230. 
Tills  niellioi!  of  appordonniiMit  was 
approvoil  by  the  .Supreme  Court  of 
Mirhinan  In  frldilinKs  r.  Ulaeker,  See- 
ri'tary  of  Slate,  !)3  Michlf^an,  1;  s.  o. 
52  N.  W.  Kep.,  !t44,  qnoliMl  infra.  S,  (W. 
It  Is  adopted  In  the  New  York  Con- 
silt  ulion  of  IHiM,  Art.  Ill,  See.  4. 

"  rnfra,  ChaptiT  XIV. 

li  Piigg  r.  Pennsylvania,  10  I'olors, 


308 


Al'l'UUTlONMKNT. 


[cilAl'.  VIII. 


^  OO.    Kcvisioii  of  ApiiortioiiinciitH  by  the  Courts. 

No  attempt  has  been  made  by  llie  courts  to  interfere  witli  miv 
conLfn'Ssioiiiil  apportionment.  Sinee  a  Fecleral  couit  will  gnut 
no  injunction  to  enforce  a  political  right,'  and  has  ordinurily  no 
power  to  grant  the  writ  of  mandamus,  except  as  incidentid  to  lliu 
exercise  of  its  jurisdiction  in  another  matter,-  and  a  State  couit 
lias  no  j)ower  to  grant  a  mandamus  against  an  ollicer  of  llie 
IJinted  States,^  it  would  be  dinicult  to  o])tain  a  ground  for  the  as- 
su.mption  of  jurisdiction  for  that  jjurpose.  Apart  from  tccluiiiiil 
ditlicidties,  it  might  be  (dainied  that  such  a  jjioct'tding  would  Iv 
an  unwarrantable  invasion  by  one  branch  of  tiie  government  inio 
the  province  of  anotiier,  and  a  violation  of  the  indejiendcuce  of  the 
three  departments,  which  should  not  l)e  undertaken,  unless  ck'aily 
authorized  by  the  language  of  the  Constitution.'*  'Die  only  ap- 
parent remedy  is  subsecpient  legislation.''  In  the  different  States, 
however,  since  the  famous  gerrymander  in  .Massacluisetts  in  \i<\-.''' 
so  many  grossly  unjust  api)ortionnieuts  have  been  made  by  ]iarti- 
saii  majorities,  that  of  late  years  the  power  of  the  courts  to  ix- 
amine  and  hold  invalid  apportioiuuents  of  mendicrs  of  State 
legislatures.'which  are  clearly  in  violation  of  tlie  eipiality  enjoined 


§  CiCt.  1  Mississipiii  1'.  .Tdhnsiiii,  4 
Wall.,  17.");  (liMii-Kia  V.  Stanton,  (1  Wall., 
50;  ro.st<'r's  Federal  rractico,  2<1  oil., 

§§  I'-i.  2.'!. 

-  Mc't'luiiK  II.  SilliiiLan,  (i  Wlioaton, 
598;  Foal(T'.s  Fcilcnil  rracUo(>,'2il  cd., 
§303. 

8  McCliinf'  r.  SllUman,  fi  Whonton, 
Bits  ;  Stall'  e.crcl.  Ci'iiinclicn  r.  lioyil,  30 
Nol.i-aska,  ISl ;  k.  c.  r,  I  N.  W.  ll(.p.,  2.-,2. 

■*  I'l'opli^  ex  rrl.  Cloiigh  r.  Curtis,  134 
U.  8.,  301;  Kuprii.  §42. 

'  111  Slalo  i:r  ril.  Cnmiolicn  v.  lioyd, 
30  Ncliiaslin,  ISl ;  r,\  N.  W.  Ki-|i..  2.V2 ; 
an  attcmpl,  wni*  iiiailc  to  cure  an  irijiis- 
llne  in  tlio  (Joni^'rcs.sinnal  apiioition- 
ment,  liyanapplicaliontotlioSapronio 
Court  (it  Nobinska  to  compel  tlio 
Govpiuor  of  that  Stale  to  call  an  elec- 
tion for  three  representatives  in  ad- 
dition to  those  allowed  the  State  in 


tlie  act.  The  Court  iiiliiuaieil  that  in 
their  opinion  the  State  was  entitiiil 
to  the  nuiiiher  elainieil ;  luit  ileiiird 
the  aiiplicatiou,  sayiiiK  that  Coii(,'rt'i-s 
alone  eoiild  remedy  the  delieiency. 

!■  So  named  beeauso  the  K.ssex  sena- 
torial (lislrlet  waa  so  irreKiiliirly 
shaped  as  to  rosenihle  a  salamaiiclei'; 
anil  Elliriilfie  (terry  was  the  (,'iiii'riioi- 
who  signed  the  bill.  ('I'he  rolilii.il 
Dejiravily  of  I  lie  Fathers,  by  .Joliii 
IhiiOi  Mi'M;isier,  Atlantie  .Monthly, 
vol.  I.\xv,  p.  031.) 

'  Slate  cr  ri'l.  Attorney-fTeneriil  r. 
Cuiiiiin(.'ham,  SI  Wlseonsin,  410;  s.  c. 
.■■il  N.  W.  Rep.,  724;  Board  of  Sii|"i-- 
visors  of  the  County  of  Hoii^rhlim,  r. 
Blacker,  ir2  Mieh.,03H;  H.  o.  52  N.  W. 
Rep.,  !».-)!;  Oiddlng.s  v.  Blacker,  S''i- 
retary  of  Slate,  93  Mich.,  1 ;  B.  c.  52 
N.  W.  Re]).,  944. 


:  (Hi 


] 


JMCVISION    IIY    TIIK    CUUIITS. 


399 


liy  tlit'ii-  respective  constitutions,  lius  been  snooessfuUy  a-isertcd, 
ami  siM.'iiis  now  to  lio  generally  eonueded.  The  ^<ew  Vork  C'ou- 
siiiuiii>u  of  1894  expressly  i)rovides:  — 

"lliiil  :iii  apportionment  liy  tlie  legislature,  or  other  body,  shall  be  sub- 
ji^cl  Id  review  by  the  Supreme  Court,  at  the  suit  of  any  citizen,  under 
siicli  ri'iisonalile  regulations  as  the  legislature  may  prescribe."' 

Till'  established  rule  seems  to  be  as  follows  :  The  legislature 
must  necessarily  have  some  discretion  in  the  nuitter,  since  absolute 
(■([Uiility  is  impossible."  The  courts  will  not  interfere,  unless  there 
is  surli  a  I'ase  of  glaring  inequality  as  makes  it  manifest  that  the 
ilisii'i'tion  has  ))een  abused  for  the  purjjoso  of  obtainir.g  a  partisan 
adviiiilage  or  of  unjustly  dimiriisbing  the  infb.ience  of  iiarticular 
Imalities ;  "^  but  wlicn  such  a  ease  e.vists  the  courts  will  de- 
iliui'  till!  apportioiunent  void."     It  was  held  that  the  fact  that 


'  A 1-1.  tit,  Si'c.  ,5. 

'•'  I'lMiplo  cr  ri'l.  Carter  v.  Rice,  K15  N. 
v.,  17!,  I'.i'.),  r>ll,r)21;  Stalof.rri'/.  Gard- 
III I  I ,  Xi'wiirk,  40  X.  J.  Law,  '207. 

'  l'i'.i|il<'  r.r  it(.  Carli-r  r.  llici',  135 
X.  v..  I7:i.  Si,\li>  C.C  ril.  Attnrricy- 
ili'ii'ial  V.  CiiiiniiiHliaiii,  si  Wisconsin, 
nil.  IS  I  ;  I'lirki'r  i'.  State  rrn/.  I'owell, 
l:i:l  Indiana,  17s ;  s.  c.  ;)2  N.  E.  Rep., 
8;ii;. 

"  III  People  c.r  ri'L  Carter  v.  Rii-e, 
Kl"i  N.   Y.,   47:1,   an   appHcation    was 


of  this  State,  liy  tlie  lej^islatnro,  as 
nearly  as  may  be,  aeoonling  to  the 
number  oft  heir  respoctiveinhaliitants, 
exeliidinn  aliens,  am]  persons  of  color 
not  taxed,  ami  shall  be  eliosen  by 
single  (listriels  "(ibiii.,  Arl .  Ill,  Sec.  5). 
It  was  held  by  a  majority  of  tho 
Court  of  .\ppeals,  which  divided  upon 
party  lines,  tliat  the  words  "as  nearly 
as  may  be"  llxed  a  certain  nnKUint  of 
discretion  in  tlie  Icf^islaturo  ;  but  that 
tho  courts  could  not  review  tlio  ex- 


iiiadc  for  a  mandamus,  and  an  Injune-  oreiso  of   kucIi   discretion,    unless  it 

tieii  to  test  tliii  oonstitulionality  of  were   manifestly   a   press  ami   Inlen- 

iin  apporlioument  law  under  a  Slate  lional  violation  ;  and  that  in  thatcase, 

leastitiilion     which     provided     that  tho  court  would  not  interfere,  as  tho 


"each  Senate  District  shall  contain  as 
iicaiiy  as  may  be  an  eijiial  number  of 
inliiihitants,  exclndiiif^  aliens,  and  per- 
snns  of  color  not  taxed  ;  and  shall 
niaaiii  imaltered  until  the  return  of 
aiiniliiM-  enumeration,  ami  sh.all  at  all 

ti s  consist  of  contiguous  territory; 

iirnl  no  eoimty  sluill  be  divided  in  tho 


only  claim  of  iiie<|iiality  consisted  in 
the  apporlioument  of  representatives 
to  the  fractions  of  the  ratio  adopted. 
.Tiid^'e  Pcdcham  said,  wlien  doliverin(5 
the  opinion  of  tho  majority  (at  jip. 
4US-.''>I)1    :  — 

"From   tho   formation   of  (jovorn- 
meut  under  written    const  it  luions   in 


feiMiation  of  a  sonato  district,  except  this  country  tho  (iuesti(ui  of  tho  basis 

siiiliconnty  shall  beei|uitahly  entitled  of  represontatiou  in  tho    Ict^islativo 

to  tHi)  or  more  Bcnalors  "   (Now  York  braiu'li  of  tho  government  has  been 

t'onstitutiou.  Art.  Ill,  Hoc.  4".     "Tho  ono  of  the  most  important  and  most 

nieiabers   of    assembly   shall    bo   ap-  fre(|uently   debated.     It   is   not    true 

Iiertioned  among  the  sovoral  counties  that  eiiualit.y  of    numbers   in   repro- 


400 


APPORTIONMENT. 


[chap.  VIII. 


the  people  had  acquiesced  in  an  unjust  and  unconstitutional  appor- 


BcntJition  hns  bocn  tho  loading  idoa 
lit  all  limes  in  ipgnrd  to  rppublicuii 
Instiliitiona.  roliliciil  dlviMlDiis  of 
tli(i8liit(?  have  in  N(>\v  England  been 
tho  boliort  wliicli  worn  outillcd  to 
ropnsi'ntalion,  and  the  town  as  a 
town  and  irrc  spcctivo  of  tho  number 
of  inhabitaiiirt  linH  had  its  n-iircsonta- 
tivc  in  tlie  leni-*latiMe,  s^o  that  a  large 
town  Ml  rcfsarily  hud  no  more  rep- 
rewentalioM  tlian  a  much  smaller  one. 
Ti'.is  i-i  the  case  to-day  in  some  of  tho 
New  r.!iglaiiil  Slates. 

'•  Tlie  jiower  to  readjust  the  politi- 
cal divisions  of  a  sovereignty  with 
tho  view  of  represi'ntiition  of  those 
divisions  or  of  the  iidialdtants  thereof, 
In  the  legislature,  resid(>8  of  course  iu 
tho  llrsl  iiislanee  with  the  |>eoi>le,  who 
in  this  oountry  are  the  souree  of  all 
Iiolllieal  |io\ver.  The  essential  nature 
of  the  power  itself  is  not,  however, 
allored  by  that  fact.  In  its  nature  it 
is  political  as  dislhiijuished  from 
lej^islative  or  judieitil.  In  intrusting 
Rueh  power  lo  any  particular  body, 
tlie  iieojile  could  by  their  Constitution 
gi\e  written  instructions  as  to  liow  it 
should  be  carried  out,  yet  the  essential 
nature  of  tho  power  still  remains.  If 
a  portion  of  it  bo  intrusted  to  a  body 
of  men  acting  as  a  lioard  for  the  mere 
j)ui'pose  of  making  a  mathematical 
calfuliition  and  with  Instructions  to 
disdiar;,-''  its  dutii's  in  a  way  whidi  is 
solely  malhemalleal,  it  is  clear  that 
the  biiard  has  no  discretion  whatever, 
uhil  it  is  bound  strictly  by  the  terms 
of  tlie  t-'raut  of  power.  In  siicli  case 
the  people  have  not  in  reality  parted 
with  the  whole  power.  There  may 
then  bo  a  power  in  tlie  court  to  correct 
tho  very  slightest  deviation  from  what 
can  be  clearly  seen  to  bi^  a  mere 
niiuislerial  duty.  There  being  no 
possibility  for  the  e.xcrciso  of  tho 
slightest  discretion,  a  violation  of  tho 
arithmetical  rule  of  proportion  would 


become  a  violation  of  tho  Constitu- 
tion,  and  as  such  ndglit  bo  the  subject 
of  review  by  the  courts.  The  power 
to  review  would  exist  because  of  Ihn 
fact  that  tho  pco|)le  had  so  bound  ami 
limited  the  exercise  of  tho  power  lo 
readjust  the  political  divisions  of  thu 
state  th.at  the  jiowor  itself  thus  limilcil 
had  become  In  its  o.xeriiso  by  tha 
body  to  which  it  was  Intnisteil,  uno 
of  a  niiuislerial  naluro  only.  Its  uii- 
ture  as  a  iiolitlcal  [lowor  In  the  boiiid 
itself  would  In  such  case  have  been 
ilian^ed  by  the  refusal  of  the  people 
to  permit  of  its  exercise  upon  any 
other  than  a  mathematical  basis. 
Hence  a  direction  to  n  body  created 
by  the  people  for  such  a  purpose, 
which  permitted  no  discretion  in  its 
exercise  under  any  circumstances, 
might  properly  form  tho  sutijeit  of 
enforcement  by  the  courts.  This, 
however,  is  not  tho  case  under  our 
constitution.  The  power  lo  alter 
these  political  divisions  bus  been  de- 
posited by  the  people  wltli  the  legisla- 
ture and  under  such  circumstances  iis 
to  compel  the  oxeroiso  of  legislative 
discretion,  in  carrying  out  tlie  power 
granted.  Tho  political  nature  of  the 
power  is  thus  retained.  The  iearneil 
judge  who  delivered  the  opinion  at 
Special  Term  in  tlio  Pond  case  himself 
admits  that  some  discretion  is  vested 
in  the  legislature  and  that  in  tho 
nature  of  things  it  must  be  so  left. 
Ho  was  of  opinion  tliat  the  discrclion 
thus  vested  In  the  legisliiture  hail 
been  overstejiped  and  that  the  consti- 
tution had  been  tliercby  violated,  ami 
that  tho  courts  could  review  and  re- 
verse this  action  of  tho  legislature. 
Discretion  Is  necessarily  reposed  in 
tlie  legislature  because  of  the  direc- 
tion of  tho  constitution  that  In  maldng 
u|)  tho  senate  districts  they  must  at 
all  times  consist  of  contiguous  terii- 
tory  and    that    no    county  shall   bo 


§iit;.] 


REVISION    BY    TIIK   COIIITS. 


401 


eiit  and  elected  legLslatiires  under  it  for  a  jierind  of  six  years 


tiiiiiin 

divided  In  the  fDriiintion  of  a  Hcimtc 
dislriil,  I'xi'cjit  Riicli  ecmnly  simll  Ik? 
(■i|iiiiiildy  ciititlod  to  two  or  mon? 
si'iiatnrs.  It  ia  nlMO  providcil  thiit  In 
ii|iporlioiiinK  incmbors  of  asscinldy 
oviTV  county  slmll  1»>  entitled  to  ono 

•■  riiis  I'lMidors  tlio    niatlinnmticnl 

]ir s><  iiii]iossilil(>,   hotli   ««   roganis 

si'iiair  district  rt  and  t  lie  apporlioiinii'Ml 
(if  rii'iiilicrs  of  assciiiliiy.  Wo  Ktart 
liicii  witli  llio  i)rop(Jsitioii  timt  to  tlio 
ic;.:ls!iit  iM"  Is  lilt  rusted  somi'  discrct  Ion 
in  !lii^  matter  of  npportioMini'nt.  Ib 
tlio  court  loliitiM'fei-e  with  siiidi  power 
whenever  It  thinliH  that  the  legisla- 
ture niisht  In  lis  exercise  possibly 
havi'  1(11110  nearer  tonn  ofiunlity,  after' 
i(iiii|i|yiii','  with  tlii>  special  eoMditions 
Ml.  lilidiicd  In  tlie  Constitution?  This 
would  lie  to  assort  a  power  In  the 
court  to  superviso  the  use  of  the 
(li.^cietion  grunted  to  the  lei^islature, 
if  siicli  discretion  were  exereised  In 
tlii>  slii;litcst  di'gree  after  tlie  eoiisli- 
tulidiiiii  mandate  in  re^;ard  to  county 
liiii-rt  and  county  nienitiers  had  lieen 
(•(iMipiicd  with.  We  do  not  believe  in 
the  propriety  or  necessity  of  any  such 
rule.  On  the  <'ontrary,  we  think  that 
the  ( oiirts  liavo  no  power  in  such  ease 
In  revic'.v  the  exereise  of  a  discretion 
inlnisteil  to  the  legislature  by  the 
roiistitiitlon,  unless  it  Is  plainly  and 
crossly  abused.  The  expression  'as 
iic.irly  ns  may  bi','  when  used  In  the 
Const  it  iition  with  reference  to  this 
sulijiict.  does  not  mean  as  nearly  as  a 
nmlliciiiaticnl  process  can  be  followed. 
It  is  a  dli'eotion  addressed  to  the 
I'Cislaliue  In  the  way  of  a  general 
Mateineut  of  the  principles  upon  wliieh 
the  apportionment  shall  In  good  faith 
lie  made.  The  legislative  purjioso 
i-hoiild  be  to  make  a  district  of  an 
"iual  number  of  inhaldtants  as  nearly 
ns  may  lie,  and  how  far  that  maybe 
carried  out  iu  actual  practice  must 


depend  generally  upon  the  integrity 
of  ilie  li'gislatiire.  We  do  not  iu- 
tlinate  that  In  no  ease  could  the  action 
of  the  legislature  be  reviewed  by  the 
courts.  Cases  may  easily  bo  Imagined 
where  the  action  of  tlwit  body  would 
be  so  gross  a  vloialioti  of  the  Consti- 
tution that  It  could  be  seen  that  It 
had  been  (>iitirely  lost  sight  of  and  an 
intentional  disregard  of  its  commands 
both  In  the  letter  and  in  the  sfdrit 
had  been  Indulged  in.  " 

Judge  Gray  .said  at  pp.  ull-SlS): 
"  It  was  apparent  that,  greater  or  less 
Ineiiuaiiti'S  must  arise  in  an  appor- 
tionment nn<l  that,  after  each  couiily 
had  received  Its  full  nundier  of  as- 
semblymen, according  to  the  rat  In 
of  apporlloniuent  ostablisluil,  there 
would  remain  some  members  to  be  dis- 
tributed among  those  counties  having 
excesses  of  iioimlatioii  over  the  ratio. 
The  contention  of  counsel  is  that  that 
distribution  must  be  in  tliooplcrof  the 
highest  excesses,  or  remaiiciers  over, 
and  any  discretion  in  the  matter  is 
denied.  In  the  present  case,  for  in- 
stance, there  were  eleven  raeiubers  of 
assembly  to  be  so  <listributed  among 
counties  having  fractional  exces.sos, 
and  the  sliowlug  Is  that  three  were 
apportloiM'd  out  of  the  strict  order  in 
which  those  excesses  stood.  It  may 
bo  remarked,  iu  passing,  that  in  an 
apportionment  of  ono  hundred  and 
twenty-eight  members  among  the 
counties,  this  showing  evidences  no 
glaring  departure  I'lom  strict  ei|uality, 
nor  any  sidicuie  to  defraud  the  people 
in  tho  nuittor  of  representation.  It  is 
the  general  ruleof  law  that  the  courts 
have  no  concern  with  the  motives  of 
the  legislative  body  in  passing  an  act. 
If  they  find  the  power  conferred  to  so 
enact,  they  may  not  iulervene  to  pre- 
vent tlio  execulioii;  and  at  all  tlnie- 
thoy  should  be  slow  to  Interfere  with 
tho  legislative  department  of  power. 


402 


Ai'roi:Ti()X.Mi;NT. 


[<  IIAl'.  VIIl. 


liad   iiii'i,  valiiliiti'd  [hv  ^;;lllR^'-      liic(iUMlily   in  iipiKi:  tloimiciiu   is 
"J  01ci«liu«.s  I'.  Jfliu'k.M-,  1)11  Miili.,  1. 


Tf  tlii'iii  wcni  licrc  n  lliifiniiit.  iliKro- 
lijaril  mill  iiri  luiiiiistiikalili^  vinliilioii  of 

llic  t'OllsliUlUlllMl    illjlllll'tillll  tllilt  tlio 

a|>piirli(iniiii'iil  slumlcl  lio  'us  iii'iirlv 
us  may  be '  ai'fonliu^'  to  llic  iiiiniljoi' 
o(  cili/.iMiH,  tilt'  I'liiirU  ini^;lil  fi'cl 
jiislilii'il  ill  (IccliiiiiiH  tlio  act  void  tor 
uiii'iiiislilulioiiulily.  Hut  wo  liavd  no 
reason  to  liii|iiito  niiy  IniiKliiloiit 
luolivis,  and  tlio  nlio\viiiK  of  tliioo 
li:.-»luin  Tso;'  ili'iiiiiliirr  I'nuii  a  ini'lliuil- 
icul  a|i|H)i'lioiimriil  is  not  ciuiiinh  ti> 
I'viili'iiio  any  ilc'lilirrale  vlnlalioii  of 
till'  (MiiistiliiUoiial  i-i'iiiiircnii'iil.  Tlio 
li'g.il  |irrsuiiipiioii  is  ill  fa\or  of  tlm 
toMftilutioiKilily  of  rvt.'i'y  art  oi  llio 
IrLiisliilurc,  ami  lliat  prcsiiiiiplioii  in 
111)1.  1I-,  ercomc  ill  tliis  iiis'iaiici',  wlicn- 
lliL'  li'ijislutivo  net  simply  eviili'iiiTS 
tho  ex 'ivisDof  disi'ii'tioii  in  prrform- 
liiK  a  poiitli'iil  duly.  Wo  may  coiu'cdi' 
that  adliiMciiii'  to  a  simply  matli<'- 
iuatl''al  sysiciii  of  diurilnitloii  of 
nioii.iii'i'H  amonn  tlio  couiiliis,  in  llio 
onji  Tof  tlii'ir  cxcossos,  of  ]iopuliitloii 
over  till'  nuio,  Is  till!  Iictti-r  niU;;  but 
dcviatioiis  may  bo  di'iiiandi'd  by  piiblio 
oxis-I'Micii's,  Snmui'oiisidi'ralioii  must 
bo  li.id  of  till'  dil'lciil'ics  which  en- 
viron llio  piissa^ro  of  au  ac!  of  appor- 
lioiimciil,  ill  till-  (■iiiillii'liii)j;  claims 
and  dc'iiiaiulsof  reprcsriiiativps;  Bomo 
latiliido  of  action  must  bo  poriiiiltcd 
in  considcnilioim  wliirh  pertain  to 
llio  t;i'0(,'raphiiaUltualion  and  ncccs- 
eitii  8  of  (ountios,  and  siuiio  iiUouaiici' 
must  be  made  tor  uclivo  opposition 
(>M,:.;oiiil'Miil  by  poliiii'ul  fo.'lii;;;.  As 
till!  bill  was  reported,  an  exact  and 
niallieiiialiciil  iipporiioiinieiit  uj)- 
peiired,  but  to  secure  tlio  passage  of 
the  act  some  ohantfcs  worn  made  by 
the  IcKislaturo.  I  do  not  think  that 
t'lo  lofiii-hituro  Is  to  act  as  a  niecliani- 
cal  coiililvanco  for  tlio  inathemalieal 
distribution  of  niombers  of  assembly. 


The  ('onslilulion  does  not  sny  so  In 
uiimislaUablo  terms,  and,  if  it  iIuib 
not,  eourlH  slimiUI  hesitate  to  assci'l 
it.  KoiiieiliiiiK  is  i'onlided  to  Ihu 
wisdom  anil  juilnnieiit  of  Iho  lejjis- 
lativo  body  in  performing  Ihis  ci.iisd- 
tutloiiul  duty,  iiiid  if  in  tho  cxi'iMiiimi 
of  the  duly  tho  result  is  not  |-.iifii|, 
tho  courts  should  presume  tli.il  llio 
let;islalur()  endeavored  lo  aecniiinll-li 
it  as  n.  arly  as  niif^ht  be.  1  lliirili, 
aecordiiiK  lo  a  lo^'ieal  and  eaiidid  v  i.  w 
of  Iho  cDiislilulional  requireineiit,  ii, 
iiiiKhl  be  impracticable,  unless  tluni 
was  some  discretion  \ostcd  in  l!;c 
Icfjislaturo  v>ilh  n-spect  to  earryiiiu 
it  into  elTiel.  Tlii.'ro  lias  been  no 
abuse  of  this  discretion  and  fur  is  lo 
adjudge  the  act  iinconstiliilioiiiil  iiiid 
to  declare  it  void,  would  be.  In  ii  y 
jiiilt;nient,  a  most  unwise  coiisii-iic- 
tioii,  an. I  would  lie  to  arrogate  a  power 
of  interference,  as  dangi  rmis  in  llw 
precedent  us  it  seems  nnwarranli  li  in 
the  law." 

lintli  of  these  judges  biliim!ei|  t'l 
the  same  party  as  the  nirijorily  of  llio 
lej^islaturo  wiiieli  li.'ul  passed  the  not 
ill  question.  In  tliiMllssentiniropiiiion 
Jiids;!'  Andi'ews  (with  whopi  (onciirretl 
tho  only  other  jlld^;o  of  the  p;u;y  In 
the  minority  in  liolli  the  Coail  irni 
the  Le[^islature)  said  (at  pp.  .llT-.'il:'): 
"Tlio  art^umeut  ur.:;ed  upon  n^  tli.it 
the  words  'as  nearly  as  m:iy  be'  k'^'' 
a  discretion  to  the  legislature,  if  it 
means  anything,  lis  applied  to  tin) 
circiimstanei'S  of  Ihis  ease,  means  that 
the  legislature  may  diaregiird  tin) 
lilain  nieaning  and  mandate  ot  tl'O 
t'onstltution.  I  deny  that  the  n:lc 
t  hat  apporl  ioniuont  must  be  '  as  pe:i::y 
as  may  be'  according  to  pnpuliitlci 
is,  or  under  any  eireuuislanrcs  i:i'! 
be  discrelionury.  I  can  conceive  lliiit 
an  appoi  tioumoul  act  should  not  be 


gr.,i.] 


HKVISION     !;V    TlIK    CorKTS 


4();} 


iliiiiti'd  in  tliG  New   V(irk  iiiid  ii  few  otliiT  Stiite  cniistitution-i, 
wliicli  nnlaiii  for  tin'  Fieiiclit  of  tliu  countrv  districts,  tli;it  cfrtiiiii 


lu  |i!  10  In-  iincoiiHtitulloiml  for  cvi'ry 
tiiviiil  ili'iuir'.uro  from  Iho  nilo  of 
iiiuiilily.  SoiiH"  iiiiHtiikfs  will  liiovl- 
liilil.v  l><:  iiiiulo  in  tli«  I'liunicnitiiin  in 
till'  ilist  iiistiinco,  and  iiflcrwiiidrt  by 
till' li'^i.-laliiri'  in  nialvinn  lln"  a|i|H)i-- 
tiiiriiiK-iil,  aUli()iii;U  it  nuiy  act  iiiidcr 
till'  iii'ist  >*iMc<'rii  di'Miro  Id  api'ly  tlio 
nili'iif  tlii>('i)nstitiiti(in.  lint  lii'canse 
till'  anporliDunn'nt  rantiot  In)  exact 
iii'cordlnj,'  to  |")|Hilaiii>n,  and  sonio 
ini'ijnality  is  nnavoidahli',  this  does 
nol  alisulvo  the  IcgislalurD  from  apply- 
lii(,'  t!ii>  rnli)  in  every  cni:e,  and  it  can- 
nut  under  till!  cover  of  tlio  words  'as 
nearly  n-i  nniy  lie'  disrcfjard  llio  rnlo 
and  relepiio  tlio  proceeding  to  tlio 
ildjiialn  of  discretlor.ary  powers  mid 
I'-^cape  ilri  binding  obligation.  When 
the  court  can  nee  that  the  r;ile 
(if  the  t'diiwtiiniion  v.as  not  in  fact 
iiliplied  and  the  I'iiiunislances  for  Its 
iipl  lii-alion  wero  clear  and  iincquivo- 
c.il,  tin  ri  there  is  nothing  left  to  Iho 
cimrt  but  to  dechiro  the  apportion- 
ment void.  Tho  sugiJtestion  that  the 
1  Ircunistancos  tinder  which  b'jjisla- 
turi  B  a<'t  in  such  inatlerH  t;ive  0|  por- 
tunily  for  tho  play  of  passion  and 
Jircjadiee,  and  llieref(>re  this  nin-^t  be 
ciiii-idered  in  deterniinin;!  the  vali.Iily 
efan  apportionment  ael,  seems  to  mo 
'">  have  no  [daco  in  this  discus-ion. 
The  very  object  of  const itmional  re- 
Bli'iilions  is  to  eslablisli  a  rule  of 
lundnct  which  cannot  be  varied  ae- 
ciiriliii:,'  to  Iho  ]iassion  or  caprice  of  a 
111  i,iiirii.v,  and  to  llx  an  immulabio 
>^i;i!iilnri|  applieabli'  under  all  elrcum- 
!la:ii-i;,.  Ii'  a  departure  from  the 
fiiiiilamenlal  law  by  lej;islatnres  can 
iaone  ease  be  jiistilied  by  the  frailties 
'if  lia'aau  nature,  and  tho  I'oiislitu- 
lienaliiy  of  an  net  may  bo  made  to 
'ii'l'i  III  in  one  eas(^  upon  such  a  coii- 
Biileratiou,  tlio  coustitutionalily  of  all 


IPKi'-'Int.lon  may  bo  governed  by  tho 
.samo  rule.  I  havo  said  tho  very 
object  in  inipo»in>»  r<>straiiits  iu  tho 
Constilution  is  to  jirotect  ^reat  prin- 
ciples an<l  iiitiTcsis  against  the  opera- 
tion of  such  eccentriit  unil  disturbing 
forces.  The  discretion  of  tho  le;'ls- 
latnre,  if  any,  in  npporlionin^,'  ni'in- 
bers,  ends  where  certainly  beeins, 
and  that  |ioinl  was  reached  when  Iho 
couniii'.:  ha\  iuj;  lliehirt^esl  remaiiidi  rs 
were  ascertained.  'I'lut  attempt  to 
jiislit'y  Iho  apportionment  of  1S'J2  by 
tho  fart  asserted  (which  Hcoiux  to 
bo  true  ,  thai  tho  appiutioimiont  of 
187'J  was  subjo<'ttoaHgre!itor  ^rcitiT 
objection  on  the  score  t)t  lne(|ualiiy 
tlian  tho  hitor  act,  fails  because  the- 
fact  is  irri'lovanl.  It  is  ono  thiiif» 
that  a  le;;:s!alure  has  disre;,'.arded  its 
duty  oM  a  former  occasion  and  tli.it 
tho  people  havo  aciiuiescod  in  tlio 
usurpation,  ami  ipiite  a  dllfi'reu!,  mid 
miicli  mure  si-rlous  thiiiR  if  sin-ii  a 
disrei^ai'il  of  constitutional  liiiiiiatiDa 
Hliouhi  reeeivo  judicial  sanction.  " 

Judj^o  Andrews  said  (at  p.  5'21  : 
"  I  shall  not  unili'rtak(>  to  show  that 
tho  (|Uestii)u  presented  i.-i  of  jinliclal 
cognizance.  That  it  is  a  judicial 
(|iiesilon  cannot,  under  the  aiilliori- 
ti(>s,  bo  ili-nii'd.  Tho  le^'islatnre  nr.d 
tho  courts  aro  nllUi'  bound  to  ob"}- 
the  ConstiUitimi,  and  if  tho  le,,'ishi- 
tiiro  tr.'insKri'Sses  the  fiiiidaiiiental 
law  and  oversteps  in  lofjislation  tho 
barriers  of  llio  Constitution,  it  is  a 
])art  of  the  liberties  of  tho  pi'ople  that 
tlio  judicial  department  shall  liavo 
and  e.xercise  tho  power  of  protnetinn 
till)  Constliiition  itself  against  In- 
frinttenient." 

To  a  sindlar  i>IVeel\vllh  the  opinion 
of  tiio  majority  in  the  above  case  nrt» 
I'roiity  V.  Stover,  11  Kansas, 'j:!");  Stato 
V.  Campbell,  48  Ohio  St.,  435.    Iu  tho 


•1U4 


AI'I'dllTKPNMKNT. 


[CIIAP.  vi:i. 


l;ll';,'('  citic.-*  sliilll   receive  less  replt 
wliieli  llieil' ji(>|illlali(in  elltille;i  tlie 

I  lUi'i' ciii^i',  wliicli  was  (111  /i|i|pliiiilioii 
r  >!' a  iii:uiiiiiiiiiis  to  i'oiii|ii'l  nil  iilii'i'u- 
lioii  (if  (III  apiKirtliiiiiiii'Mt  (if  ri'jirc- 
Nciiliilivi's  11111(1(1  \i\  II  S:al(!  'iiir  ,  M 
cdiirt  said  :  ••  II  is  nut  siilllciciu,  in  this 
liriici'cdiiiK  tliat,  we  nii|,'lil  lie  (if  tlui 
<)|iiiil(Mi  llial  »•(>  cdiild  iiiiilio  a  lii'tter 
apiMHiliiniiicnt  tliau  lins  been  niiidd 
by  tile  Uoiiril.  To  niitlKuizc  tills  court 
t(i  liitiM'fero  and  coiiiiniind  the  Doiird 
to  iiialic  anotlicr  apiiortioiiiiiciit,  tlic 
iili|iorlloiiiiiciit  made  niiist  so  fur  vio- 
late tlie  rules  jirescrilied  by  tlie  Coii- 
stltiitioii  as  to  enable  us  to  say,  that 
what  hiiH  been  ddic  is  no  a|i|i(irtloii- 
nicnt  at  aii  and  slioiild  be  wholly 
dlsrcKardeil.  If  by  any  fair  (■onslnii- 
tion  of  tlie  prini-i|iles  prescribed  by 
I  lie  Const  i  tut  Ion  for  nialiiiiK  an  appor- 
tioiinienl  tho  one  iiiudo  may  bo  siis- 
tniiii^l,  then  It  cannot  bo  dlKroj^nrded 
and  a  new  one  ordorod." 

In  liaird  r.  Supervisors,  VM  N.  Y., 
"■)!),  Ill,  tho  court  held  void  an  iijipor- 
tloninciit  of  H'^scniblynicn  that  t;avo 
the  same  rcpi('s(>ntntl(m  to  districts 
in  a  city  witli  lU.dllO  and  l(l'2,0i)0  in- 
1  iiibi Inn ts  respectively,  willi  yreat  vari- 
ations b(>twcen  those  two  extrenies. 
Hut  III  the  iiiiitterof  Haird.  112  N.  Y., 
'ti.\,  liie  same  court  rcfuseil  to  inler- 
liTc  uiili  an  apportionmont  in  tin! 
same  city  which  created  assembly 
districts  varyliiK  from  01,2(',3  to  48,1)44, 
the  number  (Mitltlc(l  to  an  assembly- 
man if  the  city  were  ei|ualiy  divided 
being  ni.ST'.  Ill  matter  of  AVhitin\v 
1I2K.  v.,  nitl,  tlicy  held  tliat  1  ho  fact 
that  tlieiipportioiiment  was  made  with 
referenco  to  the  (Mil  i;e  population  in- 
clusive of  aliens  who  wcni  not  A'otors 
was  no  ground  for  setting  It  aside 
when  it  wds  not  shown  tliat  tho  In- 
clusion of  the  aliens  materially  affected 
the  result. 

In  State  m  rcl.  AttorneyGcuoral  i). 
Cunningham,  81  Wis.  440;  s.  c.  51  N. 


scut  itivcs  lli;iii  the  ntiiuli  ;•  1 1 
'III.     'I'lie  iistbil  iiii'iilis  (if  Ic.^liiii^f 

\V.  i;cp.  7'Jl;  I  lie  Siipiviiiu  ('null  iif 
Wiscuii.siii  liclil  iiiiaiiiinoUMly  tliai,  uMiliT 
the  iiriivisioi,  of  ilic  C  iiistitutinn  i^f  lliat 
State  (article  iv,  §  ■!),  that  assciiibly  ilis- 
tricls  «iiail  be  '  biailided  by  eiiiiiiiy,  [iiv. 
cinci,  town  or  ward  lines,"  an  act  civiii. 
Ing  nsseiiibly  di.-itrictrt  wliich  cnntiiin 
one  county  and  a  fraction  of  lumilier 
county,  or  wliiuli  ccint.iiii  (niclionsnf  Hvo 
or  luorc  cimiiticM  is  void  ;  that  iiiulirtlio 
ciinstilutienal  pnivisiiin  tliat  an  apper 
tionmciit  hIiiiU  bo  "according  to  tiio 
numlicr  of  inliabilaniK,"  an  apportion- 
ment act  wliicli  created  scniite  ilislriiMH 
varying  in  pupulation  from  ;)S,i;iiO  to 
08,iiul,  and  assembly  districts  varying 
111  iiopulati'in  from  l),S'j;l  to  .'18,801  was 
void  ;  and  llial  a  bill  by  the  SIiilo  utter- 
ney-geneial  on  lu  half  of  tlie  .State  to  en- 
join tlio  Sccrelary  of  Slate  fnnii  pul)- 
lisliing  notices  of  eici'tion  in  accuiilance 
with  the  aut  should  bo  sustained. 

.Tudgc  Ortou  said  (at  ]i.  4^1):  "It  la 
proper  to  Hay  that  perfect  exneliiess  in 
the  api>ortioniiicnt  acc^ordiiig  to  the 
number  of  inhabitants  is  neitlicr  re- 
(juired  nor  possible.  Hut  there  slimilil 
be  as  close  an  approximation  to  cxaet- 
iiess  as  po.ssible,  and  this  is  the  utmost 
limit  for  the  exercise  of  legisiativu  di.s- 
cretion.  If,  as  in  this  case,  there  is  such 
II  wide  and  bold  departure  from  tliia 
constitutional  rule  that  it  cannot  jios.ii- 
bly  be  jiistilied  by  the  exercise  of  any 
judgment  or  discn'lion.and  that  evinces 
an  intention  on  the  part  of  tliclei;islatniv 
to  utterly  ignore  and  dlsrcgaril  I  lie  rule 
of  the  ("onstitution  in  order  to  pninioti' 
Bomo  other  object  than  a  coiistiiiitinnnl 
apporlionineiit,  tiicn  the  coiiclusien  i.s 
inevitable  that  the  legislature  did  not 
use  any  judgment  or  discretion  wliat- 
ever.  The  above  disparity  in  tlio  num- 
ber of  inhabitants  in  the  legi.slative  dis- 
tricts is  so  great  that  It  cannot  be  over- 
looked as  mere  careless  discrepancies  or 
slight  errors  in  calculation.  The  differ- 
ences arc  too  material,  great  and  glarins, 


§  '''''•! 


nr.vrstiiN  i«v  tiii:  ('(iriirs. 


40") 


llif  (oiisiitutioiiiilitv  III'  iiM  a))ii()rti()iiiiifiit  lioTort'  tlie  coiiiL-i  is  liviiii 


;iiiil  ili|irivt!  Uio  many  ol  lliii  pcdpli'  of 
•,lii'  Slalo  (if  all  rcprc'Kc'iiUlkm  in  llio 
I'^Uisliiliiiv  to  I*  allowt'd  to  iHiHH  lis  mere 
iriMis  of  jiiilgiiiPiit.  Tlicy  liiur  upon 
their  facf  liiu  iiitiiiisic  evidtiii'u  that  no 
ju(l:,'nii'nt  or  iliscri'tloii  waH  exercised, 
Bii'l  llial  liny  wiTo  inuilo  intt  iitioniiUy 
aiiil  wilfully  for  Homo  Improper  purpose 
iirforsiimc^  privalu  end  forciyti  to  tun- 
stiiuiiomil  duly  iinil  olili(;ivlion.  It  is 
ruil  an  '  apportinnnieiit '  in  any  senne  of 
tilt'  wnrd." 

Till' Constitution  of  Michigan  provides 
tliiii  "  every  county  except  Mackinaw 
nml  Chippewa,  eiUitled  to  n,  rciireseuta- 
tive  in  the  leHislamre  at  the  time  of  the 
adiiptiiin  of  this  Ciiusliintion,  shall  cou- 
tiiiiie  111  1)0  so  entiilid  under  this  Consli- 
tuiien."  "  Kaeh  county  liaving  a  ratio 
of  representation  and  ft  fiaclioii  over 
(■i|Uiil  to  a  moiety  of  Baid  ratio,  shall  be 
eiililled  to  two  representatives,  and  bo 
on  ahovo  that  numher,  giving  one  ad- 
ilitiiiiial  niondier  lor  each  a<lditional 
ralio"  (Schedule  2l'). 

Ill  liciard  <if  Supervisors  of  the  County 
of  lleiiuhiou.iy  Micli.,().'i8;s.c.;.'J  X.W  . 
l!ip.  li.'il ;  it  was  held  unanmiou-ly  bv  .i 
ciiurt  of  divided  polilical  opinion:  that 
tlic  Apiiorlioninent  Act  of  IS'.M,  wliich 
ilivid'  d  Houghton  County  so  unto  create 
one  ilisi  i-ict  of  certain  townships  therein 
aid  another  district  of  tliu  remaining 
townships  and  two  other  couniies,  was 
veici, since  it  deiirived  Iloiighloii  County 
of  the  two  representatives  to  which  its 
piipiilation  entilled  it;  that  the  Appor- 
tiiiiiiijent  Act  of  IHSn,  which  in  proviiling 
for  tlie  representation  of  fractions  of  the 
nuio  gave  a  ri'presentulion  to  fractions 
ill  coiintioa  which  though  more  than  a 
lialf  were  loss  than  fractions  in  otlier 
coiiiilies  left  unrepresented,  was  also 
Void;  and  that  unless  before  the  election 
a  new  and  valid  apportionment  sliotild 
be  made  a  mandamus  must  issue  dircct- 
liiu'  i!io  Secretary  of  State  to  give  notice 
of  an  election  under  the  Act  of  1881. 
Chief  Justice  Moree   said  (pp.  651- 


051):  "His  al.M)  claimed  that  tlie  Coii- 
Ktitiition,  in  relation  to  thu  apportion- 
nun',  of  Kepicsentitives,  cannot  always 
be  carried  out  in  detail  without  violating 
some  of  lis  provisions.  This  is  no  doubt 
true,  but  it  affords  no  argiiinent  in  favor 
of  the  division  of  counties  except  in  the 
cases  provided  by  the  Coiistilutioii.  If 
one  county  can  bo  disniendiered.  all  of 
tlieni  can;  ami  we  iiii^Mt  Inu  under 
tlio  exercise  of  the  leglslativo  discretion, 
a  representation  ignoring  couniies  alto- 
gellier,  and  lia.sed  solely  upon  tlio  idea 
of  ei|iuility  of  iiopiilatioii.  Tlienc-hedule 
to  tho  Constitution  expresi-ly  jirovides 
that  "every  county,  except  Mackinaw 
and  Chippewa,  entitled  lo  a  Kepresenta- 
tlve  ill  the  Legislatuie"  at  the  time  of 
it«  adoption,  shall  continue  to  be  so  en- 
titled. When  it  i.s  atlempted  to  carry 
out  this  provision  and  to  give  each 
county  organii' jil  since  the  Constitutioii 
was  adopted  (  no  Kepresentative  for  a 
moiety  of  tho  ratio,  and  al.so  every 
county  a  member  /or  each  ratio  and  an 
additional  meinlic.  fur  a  moiety  of  a 
ratio, and  then  limit  the  numberof  KeiJ- 
resentatives  lo  lUll,  or  any  luimber 
which  hIihU  bo  the  (piotient  of  the  divi- 
sion of  the  whole  of  the  pupulatiiin  of 
tho  Statu  by  the  ratio,  it  will  be  found 
that  it  cannot  always  be  done  without 
denying  to  some  county  its  constiiu- 
tional  right  of  representation.  Vnr  In- 
stance, the  ralio  of  repre-entalion  at 
100  members,  under  the  census  of  IS'.lll, 
is  20,!):  18.  I'nder  this  census  and  ralio, 
if  tho  Constitution  bo  followed  in  all  of 
its  inovisions,  tiie  counties  entitled  to 
one  or  more  Kep  ■esentativea  under  llio 
moiety  system  use  up  07  out  of  the  10  I 
members,  and  there  are  still  left  20 
counties  in  the  northern  part  of  the 
State,  with  a  population  in  round  num- 
bers of  i:!7,i>l"',  out  of  which  to  carvo 
three  districts^,  jacli  with  a  poimlallon 
of  over  45,000  —  more  than  double  the 
ratio ;  so  that  two  men  would  not  liave 
the  renrosenttitlon  in  these  districts  that 


400 


APl'OUTIONMENT. 


[f'lIAl-.  VIII. 


iipplicatioii  foi'ii  iimndaiiiuM  to  rctiuiru  a  jmhllc  oiTicerto  issue 


eii'L'- 


oiU!  would  liiivc  ill  I  lie  crtliiTs.  So  far 
as  I  luivi'  ('x:iminicl,  there  lias  never 
been  an  !iii|iortionirii'iillmt  tliisdlRiriilty 
liiia  been  encmiiitereil ;  ami  it  lias  been 
a,  subject  of  iiiucli  perplexity  and  vexa- 
tion ill  tlie  liCjj'itlature.  It  lias  resulted 
always  in  the  neeessary  denial  to  soiiio 
county  or  counties  of  their  full  repre- 
sentation under  the  moiety  sysieiu.  This 
Court  could  not  bf  called  upon  to  en- 
force a  eoristitutional  provision  incapa- 
ble of  enforci'iiient.  In  ciisu  of  uiaUing 
astiiuitabie  a  division  as  possible  under 
tlin  Constitution,— and  that  is  all  that 
can  be  reiiuired, —  it  imist  be  within  the 
discretion  of  the  lA'gislaturo  to  deprive 
Boiiio  of  the  counties  of  their  representa- 
tion or  additimial  representation  upon 
the  moiety  plan  ;  for  two  ratios  cannot 
always  be  given  three  Ucpresenlalives, 
and  at  the  same  time  liinil  the  niiniber 
of  till'  whol"  lo  one  for  eiicli  ratio.  lint 
ill  s  u:h  di-crelion  thr  eonnlics  bavin.!,' 
the  least  number  oi'  inlialiitants  above 
the  ratio  or  the  nioii  ly  of  the  ratio 
Hhould  be  tlie  one.-i  to  lailfer  this  depri- 
vation. For  instance,  In  the  present 
apportionment  Ibmghton  Coiinly,  with 
a  populatiiMl  of  3r),:5HO,  was  entilleil,  un- 
der the  moiety  plan,  to  two  Hepre^enla- 
tlve.s,  as  were  al.so  Sanilac,  Tii.-^cola, 
Menominee,  Macomb,  and  Montcalm. 
These  counties,  in  population,  under 
the  eiMisiis  of  18(10,  were  as  follows  :  Me- 
iiomiiiee,  IVi.t'i:!'.!,  Motitcalm,  .'!2,(':'i7,  San- 
ilac, 32,ri8',»,  Tuscola,  ;!-2,6il8,  Macomb, 
;il,Sl:!.  Of  these  six  counties,  if  Itiive 
were  lo  be  left  out,  Houghton,  Meiiomi- 
noe,  and  Montcalm  were  entilled  to  two 
mi'iubers  eacli.and  Sanilac,  Tuscola,  a  id 
Macomb  to  one  each.  Hut  the  Legisla- 
ture gives  two  each  to  th('  last  three, 
and  only  one  to  each  of  the  first  three 
abovo  named,  thus  reversing  the  consti- 
tutioiiiil  oiderof  jirefeniice.  ruder  the 
Con.-,litution  all  of  them  are  entitled  to 
two,  if  the  various  provisions  of  the 
Constitution  can  be  so  worked  out  as  to 
give  each  of  them  two.    If  they  cannot, 


then  the  one  or  more  left  out  should  Im 
tlio.se  liavinf;  the  least  po|Hilati"n.  Tliero 
can  be  no  legislative  discretion,  iinilcr 
the  Constilulion,  tog!v(^  a  county  of  le.ss 
population  than  another  a  greater  repre- 
sentation. Such  action  would  be  arbi- 
trary ami  I'apricious,  and  .igiuiist  tlio 
vital  priuciiilc  of  eipiality  in  our  govern- 
ment, and  it  is  not  intended  or  penniltiil 
by  the  Constitution;  nor  could  such 
action  lead  to  my  good  result.  Tlierc 
can  bo  found  no  excu.se  for  it.  The  re- 
lator prays  that  the  Secretary  of  State 
deliver  a  notice  to  the  sheriff  of  l!iiii;;li- 
ton  County  that  two  Kepre.<ent;itives 
are  to  bo  chosen  in  said  county  at  the 
next  election,  and  for  such  other  and 
further  relief  us  to  the  Court  may  seem 
pro|ier  in  the  premises.  The  special 
prayer  cannot  be  granted.  The  hoard 
of  supervisors  have  no  power  to  divide 
Ibnr^hton  Coanty  into  two  districts,  ini- 
li'ss  so  atiihorized  by  the  L.'gislalnre. 
Tiieir  action  in  tliis  respect  is  niiil  and 
Void.  Hut  the  p.'ople  of  the  coniity  are 
entitled  lo  vote  logctherfora  Itepri'sen- 
talive.  No  portion  of  them  can  he  de- 
taclied  ai.'l  joined  to  another  county. 
The  Apportionment  Act  of  181)1  is  void, 
because  it  undcrtoo!;  to  disineiiihcr 
Houghton  County,  and  because  the  Cnii- 
stitiilion  was  also  violated  ,  giviiii; 
counties  two  Hepre.sentatives  having  a 
les.i  popid.'ition  than  coiintii^s  which 
were  accorded  but  one. 

"The  law  of  188.j  is  al.so  unconstitu- 
tioiiai,  for  the  reason  that  the  eminties, 
or  soino  of  them,  were  {,'i^''"  rejire- 
semation  in  ileliance  of  the  Coiistilu- 
tion,  and  without  the  discretion  of 
which  1  have  bpoUeii.  Hay  Coiinly, 
with  a  iiopiilatioii  of  tj\;22\,  was  given 
but  two  Hepresenlatives,  while  fienawee 
County,  witli  a  less  population,  to  wit, 
4l),oHl,  was  (iiven  three.  This  was  nut 
thoexi'fciseof  con-lilolional  di-eretion, 
but  an  arbitrary  delerminatlon  forsoniu 
reasons  other  than  adesiro  lo  confirm 
to  the  Constitution.    Uuder  the  moiety 


^  '■''■•] 


i:i;visi(>N  iiv  Tin:  coikts. 


407 


li;iK  luitices  luidcr  llio  furiiicr,  or  for  an  iiijiiiiclioii  to  jjrovuut  liini 


clause,  Hay,  Lonawee,  and  St.  Clair 
wer.'  I'lilitli'd,  in  lHt<o,  in  the  order 
iianieil  to  tlireo  Heprt'sentativefl.  If 
ouly  one  could  be  given  this  number, 
the  Constitution  rciinired  it  Hhould  be 
I!;\y  ;  if  two,  Hay  nml  Lenawee. 

"Am  cxaminatidii  of  tlio  Apportion- 
meni  Act  of  IKHl  shows  it  to  liave  been 
wiiliiii  the  coM.stitulionai  discretion  of 
the  I.cL'ishilure,  and  therefore  the  Seo- 
n  liuy  of  Stiite  must  give  his  notices 
UMilir  the  law,  UJilessft  new  and  valid 
,i|'|)(irlionmoiit  .shall  be  made  by  tlie  Ixg- 
is'uture."  The  Kaiiie  Court  lield  unan- 
inioiHly  in  OiiMlnirs  u.  Blacker,  Sccre- 
tiiry  (if  State, !».'!  Mich.  1;  s.  c,  02  N.  W. 
llo]i.,  ill4;  under  a  oon.stitulional  pro- 
vi>i(iM  tliat  Iho  leijislature  Rhstild  after 
cull  iiensus  rearrunj;e  the  Senate  ilia- 
tricls  according  to  the  number  of 
wliilc  inhabitaiitH,  and  civilized  per.sons 
of  liiiliim  descent  not  nieinber.s  of  any 
liihe  (Micldi;an  (^onhlilutioii.  Art.  IV', 
Sec,  ;!) ;  and  that  "no  county  shall 
h"  divided  in  the  forinatioii  of  Senate 
<li.-lricls,  except  such  county  shiill  be 
filiiitnl)ly  entitled  to  two  or  more 
SiMiutors"  (Micliisan  Constitution,  Art. 
IV,  Sec.  'J)  ;  that  the  Apportionment 
.\' t  nf  1(^91,  which  under  n  ratio  of 
i'>"i,4:;i  created  senatorial  districts  of 
null  diverse  population  that  the  laii;e.sl 
li;id  ',I7,.T?0  and  the  smallest  .'!!l,7:.'7 
iiili.'d)ii:uits,  tliat  cifjlit  senaturs  would 
reprcsmt  di.striels  with  a  population  of 
li'.i'i.VlT,  and  ei;,'lit  other  sen.'itoin  dis- 
tii'ts  with  a  ))opulalion  of  ;!l!»,irj(!,  was 
voiil ;  that  tlio  Apportiniiinent  Act  of 
I''"."!,  wliich  gave  ('iglit  districts  contain- 
iii^;  .'i  population  of  ;il('i,778  the  same 
imiiilier  ot  sena'or.s  as  ci^ilit  other  dis- 
tricts with  a  popiil.'ilion  of  {J.iJ,'J'J2 
was  also  void;  that  thn  iicipi!i';ieence 
ill  and  ii-ie  liy  the  jieople  of  the  system 
oreateil  by  the  Act  of  l.S.S.'>  did  not  cure 
its  niieo!!slitmionalily ;  and  that  a 
private  citizen  was  entitled  to  a  iiiiin- 
iliiinus  com))elling  tlie  issue  of  election 
noUccs  under  the  Act  of  l&Sl. 


The  court  intimated   in   its  opii;ion 
tli.'it  the  rulo  rinu'^-'csled  liy  Webster  was 

Chief 
■It 


tl 


le   oii'y  coric't  one  Ipp.  7- 


.Iii-liee  Miii.-iO  baid  (at.  pp.  lll-1.3i 


is  ovid'iitiv 


stitutlon  that  the 


iteniplaled  by  tlio  Con- 
:ty  hliall   he   the 


essential  factor  in  the  fortiiatioii  of 
senatorial  districts.  'No  county  thall 
l)o  diviiled  in  the  fornnition  of  Senato 
di-^triets,  except  such  county  .^liali  be 
equitably  enlllled  lo  two  or  more 
senators,'  id  the  prevailing  idea  of  the 
organic  jirovihion.  "It  's  further  con- 
tetni)iated  that  such  districts  shall  lie 
arranged  according  to  the  'ninidier  of 
white  inhabitants,  and  civilized  persons 
of  Imlian  (b\scent  not  members  of  any 
tribe.'  'J'his  ('(pi.ility  of  representation, 
liowever,  is  .sccmdaiy  to  and  hainpeied 
by  the  fact  that  no  coiinly  can  bo 
divided,  and  a  part  of  it  attaclied  to 
another  county,  or  the  ]iart  of  aiKuher 
county,  in  ordi'r  to  inako  tlie.  di.-triets 
ecjual,  or  nearly  so,  i:i  populaiion.  This 
express  inhibition  agiunst  the  ilixision 
of  a  county  gives,  necessarily,  great 
latitude  to  the  le^islitive  diricretion, 
and  tlic  senatorial  districts  mu'  I  ot 
necc-sity  not  Ih)  as  cpnilly  dividid  aa 
to  population  as  might  be  doio"  if  county 
lines  could  be  disregarded.  The  I.egis- 
laturo  undoubtedly  could  tnko  a  ])ar- 
tisan  advantage  by  making  <hoice  of 
different  counties,  and  joining  them 
together  in  one  senatorial  <listrict,  wlien 
such  counties  arc  contiguou.«,  so  tliat 


I,< 


slalnr 


if  one   political  com- 


plexion, might  put,  foiinstance,  Macomb 
and  St.  Ciair  in  one  district,  wlule  ttn- 
ollierof  a  dilTerent  political  complixion 


miejit  join    .Macomb  wiili   L 


ipi 


ind 


St.  Cliiir  with  Home  other  adjoining 
county,  and  not  violate  any  constitu- 
tional rights  of  tho  electors  of  sui  li  dis- 
tiiets.     I!ut,  as  shown  bv  Mr.  .lu-tice 


(ir.int.llie  l.euisiatnrc  in  the  semito 


rial 


aiipoilionment  of  Ibill  went  fur  lieyond 
any  legitimate  discretion  and  violated 
tho  ruli     of  ctiuily,  when  it  wai  not 


408 


Ari'OKTIONMENT. 


[CHAI-.  VIU. 


from  issuing  election  noives    or    filing    returns  undor    tlie   new 


necessary,  or  even  proper,  to  do  so, 
because  of  tlio  fuel  that  a  county  coukl 
not  be  diviiliHl.  Tlio  twenty-sevenlh 
and  twenly-iiintli  districts  liocoiitijjiioub 
to  eacli  otlicr,  sd  tliat  tliorc  was  no 
excuse  for  putting  07,S'0  people  in  one 
and  only  40.li;!,'5  in  llio  oiIpt. 

"  Tilt!  senatorial  apjj  irtionments  of 
1891  ami  IriS",  wljici  ■.■  bofure  us,  so 
that  wo  are  ci  iii  ""loa  n-.ine  tliein, 

were  noitlier  of        iii  ii^ed  in  vlow 

of  the  Constitution  or  Ihe  rights  of  the 
electors  of  this  State.  While  it  is  true 
that  the  motive  of  an  act  need  not  be 
inquired  Into  to  test  its  ecmstitutioMalily. 
I  believe  that  the  time  'nr  plain  speak- 
ing li'vs  arrived  in  relation  to  the  oiit- 
Ff'jieoua  practioo  of  gcrrymamlering, 
which  has  beccinio  so  common,  and  lias 
80  long  been  indiilp'd  in,  without  re- 
buke, that  it  tlueateus  not  only  the 
peace  of  the  people,  b;it  the  pennaneiicy 
of  our  flee  iiistiuuions.  The  courts 
alone,  in  this  resprct,  can  save  the  rights 
of  the  people,  and  give  to  tliein  a  fair 
count  and  equality  in  represenlalion. 
It  has  been  demonstrated  that  tli" 
people  themselves  cannot  right  tlii« 
wrong.  They  may  change  the  pol'^:.!il 
majority  in  the  Legislature,  as  till';  .  i> 
ol'un  done,  but  the  new  majorh 

at  once  to  make  iin  a.  ■'  •  i  • 
ni  .  in  iho  interest  of  its  parly,  lis  ..n 
ei|  ..iland  politically  vicious  as  the  one 
th.u  It  repeals.  Tlier-  is  not  an  in- 
telligent schoid  boy  but  knows  what  is 
the  motive  of  t'.iese  legislativi^  a[)portion- 
nicnts,  and  it  is  idle  for  the  courts  to 
excuse  the  action  upon  other  groinids, 
or  to  keep  silent  as  to  the  real  reason, 
which  is  nothing  more  nor  less  than 
partisan  advanliiie  taken  in  ilcliance  of 
Ihe  ('i^nsliiution,  and  in  iitler  disregard 
of  the  rignts  of  the  citizen,  ''"ako  our 
own  Static  lor  example.  In  '■!•<•  ■  'ection 
of  ISSl,  the  Uepuhlican  C'.:,.diu'>'.>>  for 
Secretary  of  .Stale  had  a  pl.n  ••  of 
i.'.ia.)  (Hit  of  a  total  vote  of  In, '103. 
The  Itepublicae  majority  in  the  Legisla- 


ture of  1885  arrarged  the  senatorial 
districts  HO  that,  upon  the  vote  of  lfj84, 
21  were  Kepublican  and  11  were  Deino- 
cratic.  In  eight  districts  a  populatloa 
of  310,578  are  given  the  same  representa- 
tion in  the  Senate  as  are  0.'i2,-2i'2  peoiiln 
in  eight  other  districts.  The  L'pptr 
reninsula,  with  Knnnct  and  Mackinac 
Counties  added,  is  given  three  Senators, 
when  it  is  only  oiuilled  to  two;  the 
[lopulation  of  the  three  districts  — 
thirtieth,  thirly-lirst  and  tliirty-.secoiul  — 
combined  being  124,ij8t),  and  the  ratio 
01,125.  In  ISiH),  the  Deniocralic  can- 
didate for  Secretary  of  Slati^  rceived  a 
|>lurality  of  2,7liO  over  the  lli'imhlicim 
candidate  in  a  total  vote  of  IIDS.GU,  ai;d 
the  Democratic  majority  in  the  Legis- 
lature  of  1891  apportioned  the  .senatorial 
districts  so  that,  on  the  basis  of  tli" 
vote  of  18i)0,  21  were  Democratic  ami  11 
llepublicaii.  As  sliown  by  Mr.  .Inslin- 
Grant,  three  districts  were  so  diviiiiil 
that  ill  eight  of  them  a  populalinii  of 
;!4!i,ir>'i  liavc  the  same  representation  ,is 
(105,717  in  eight  other  districts,  ami,  in 
order  to  'lid  tin-*  ineiiualitv,  the  county 
'it  Saginaiv  is  divided  into  two  dislrii'ls, 
when  it  lis  only  entitled  to  one  under 
i  e  Constiiutlon.  It  will  thus  be  si  I'li 
h:il,  upon  a  plurality  of  le.ss  than  fi.ditO 
ii  ■  total  vole  of  about  4(10,000,  ea-li  of 
,^^■e  political  p.arlies  has  so  gcny- 
niii'lercd  these  senatorial  districts  ili:it 
•,i.  o  has  21  senatorial  districts  to  II 
of  the  other,  if  periiiilted  to  coiitiiiue 
in  this  kind  of  business,  tlie  next  Legis- 
lature to  nnportion  Senators,  if  itspiiliii- 
calcomi  I'll  should  be  ilil'fereiil  fniiii 
the  last,  following  in  the  footsti'ps  of  its 
jiredecessors,  will  easily  change  ilio 
tigures  about  again,  and  give  its  p.iriy 
the  21  .senators  and  the  idlier  Ihe  11. 
It  is  time  to  stop  it.  And  the  citizen 
has  the  riglit  to  appeal  to  the  Court  in 
defense  of  his  most  sacred  rights  uiidiT 
the  (^onstitiiiioii.  He  cannot  be  ohli^'ed 
to  wait  for  prosecuting  attorneys  or  the 
Attorney  ticneral.    It  Is  as  well  a  pri- 


§  '■''■'•] 


UEVISION    BY    THE   COUUTS. 


409 


law.'''  It  has  been  held  that  a  i)rivate  citizen,  who  is  a  resident 
(if  a  locality  nneonstitutionally  deprived  of  its  due  proportion  of 
npiLsentation  by  the  apportionment,  can   obtain  sueli  a  nianda- 


lUU: 


14 


\\'liore  HO  much  of  the  apportionment  act  as  legally  passed  the 


vail' IIS  a  public  f-'iiuviinci' ;  and  tlie  iii- 
(liviiluiU  oli'cMir  can  invoke  tlio  aid  of 
tlic  Court  ill  Ills  (iwii  Id'lialf,  and  (!all 
allciiiion  also  to  Uit  existence  of  a  great 
pul.lio  wrnn;;. 

"  riiere  is  no  liiKlierpri^ileKe  granted 
to  tlie  citizen  of  a  tree  country  tliaii  tlie 
riulil  of  e(|iial  suffrage,  and  tliereby  to 
un  e(|iial  reiireseniatitui  in  tlie  luukiiig 
ami  ailininistralion  of  the  laws  of  the 
laiiil.  IJiiiler  our  Stale  Constitution 
e  right  of  the  elector  is  fixed.  To 
liini  ic|ual  re|ire»entaliim  is  a  right  as 
\vi  11  as  a  iirivllege,  of  whieli  the  IjCgis- 
lalure  cannot  deprive  liini.  'I'hese 
wniii^'s  have  Ijeen  eoniniitted  for  parti- 
san iiiirpo.sea.  Their  object  and  effect 
have  been  to  deprive  tlie  majority  of 
the  ]«ople  of  their  will  in  the  adniiiiis- 
tiati.ii  of  the  government.  The  greatest 
(laiigir  to  our  free  instiiution.s  lies  to- 
day ill  this  direction.  J5y  this  system 
of  girryiiianderiiig,  if  permitted,  a  politi- 
cal p.iriy  may  control  for  years  tlie 
goviriiiiient,  against  the  wl.-.lies,iirote.--ls, 
and  voles  of  a  majority  of  the  people  of 
tlio  Slate,  oacli  Legislature,  chosen  liy 
uiii'li  means,  perpeiiiaiiiig  its  political 
power  by  the  liUe  h'gislatioii  from  one 
appiiriionnient  to  another. 

"We  have  lieen  ohilged,  under  the 
issue  lure  made,  to  investigate  hiil  two 
apportionments,  —  those  of  18!l|  and 
Iss,'].  Holh  are  tarred  wilh  the  same 
slick.  We  do  not  care  to  go  further, 
rIm'O  there  is  a  remedy  in  the  liiinds  of 
the  I'xeeutiveand  I.egislaliiie.  The  con- 
scqiiiMices  of  this  decision  are  not  for 
us.  It  is  our  duly  to  declare  the  law,  to 
point  out  the  invasion  of  the  Constitu- 
tion, anil  to  forbid  it." 

In  Norili  Carolina  v.  Van  liokelen, 
li)  N.  ('.,  litH;  ,aii  act  amending  a  city 
charier  was  held  invalid  becaiisoot  a-i 


unfair  apportionment  of  aldermen  there- 
in contained.  The  court  said:  "So 
much  of  said  act  as  gives  to  each  of  the 
liist  and  second  wards,  with  4(10  votes 
each  a  representali.  .>  of  three  aldermen, 
and  to  the  third  w.ird  with  -J, TOO  votes, 
also  a  likn  representative  of  three 
aldernieii,  violates  the  fiindaineiital 
principles  of  onr  Constitution  and  is 
therefore  void." 

In  Parker  v.  State,  cj-  rd.  I'owell,  1.33 
Indiana,  17;s  ;  ?.  c.  J  N.  K.  Hep..  SSC; 
s.  c.,oii  motion  for  rehearing  13:'.  Indiana, 
212;  Z]  N.  K.  Kep.,  lU);"the  Indiana 
upportioiiinems  of  1870,  1885  nnd  18!U 
were  held  iinconslilulional ;  but  since 
the  relator  .sought  on  aci'ount  of  the  un- 
constiuithmality  of  the  last  two  to  have 
the  eleclioii  held  under  the  first,  which 
was  also  void,  his  a|iplicalion  was  de- 
ne il.  The  Act  of  I81I1  provided  for  HO 
senators.  As  the  voters  wore  .loUO-lS, 
an  eipial  a|iporiioiiim'iit  gave  one  sena- 
tor to  each  ll,()2l)  voters.  40  eountics 
were  formed  into  22  seiialorial  dislricts. 
11  of  those  dislriels  contained  2;i  comi- 
ties and  l-t8,.HI(l  voters.  The  other  11 
conlained  20  countieH  and  ('il.dOn  voters. 
Each  of  tlieni  had  ilin  same  nnni'er  of 
senators,  one  ti)  each  district.  i  he  ap- 
porl  ioiinient  was  held  niieiinsiliniioiial. 

i^Hlalo  ex  re'.  Altorney-fbneriil  v. 
Cumiinghiiin,  81  Wis.,  -MO:  l!o.:rd  of 
Supervisors  of  the  Coniily  of  Ilougli- 
lon.  1)2  Mieh.,  (1;18  ;  h.  c.  hi  N.  W.  llep., 
nril ;  (iiildings  V.  lilaeker,  Seiretary 
of  Stale,  Silt  Mieli.,  1  ;  s.  c.  .-)2  N'.  W. 
Uep.,  'Mi;  People  ex  rel.  Carter  ii. 
Itiie,  l;i.-)  N.  Y.,  47;t. 

"(iiddings  r.  Ulaeker,  Secretary 
of  Stiile,  !Ki  Mieh.,  1;  Nebraska  v. 
Singleton,  21  Neliraska,  5811;  seo  also 
People  ex  rel.  Daley  r.  Rico,  12U  N.  Y., 
44'J. 


410 


AIM'OUTIONMENT. 


[CIIAP,  VMI, 


li'j^islature  oniittt'd  iinj-  grant  of  reprfisentation  to  the  inlia])ii;int.s 
of  ii  piiiiinilar  county,  the  court  lieltl  that  that  county  slioiild  n'- 
tain  tlic  representation  wliich  it  liehl  under  tlie  precedini,'  appor- 
tionment; and  that  so  nuicli  of  the  act  as  had  legally  [jasscd  and 
provided  for  representation  to  the  remainder  of  the  Statj,  slioiild 
he  enforced.'"  As  a  general  rule,  the  State  constitutions  ])rovi(li' 
for  a  i)eriodical  apportionment  after  each  new  enumeration  of  tiicir 
respective  iidiahitants.  It  has  been  held  that  in  the  interveiiiiii,' 
time  no  new  apportionment  can  be  made,  either  directly  or  ]>y 
sui  h  a  change  in  the  lioundaries  of  a  political  stibdivisiou  of  the 
State  as  to  change  the  different  assembly  or  senatorial  districts;"' 
or  to  deprive  part  of  the  State  of  representation;''  Imt  in  one  case 
an  act  was  sustained,  which,  after  tlie  new  enumeration,  but  before 
tlie  new  apportionment,  enlarged  the  boundaries  of  a  city  so  as  to 
include  territory  in  one  district  which  formerly  Ijelonged  tn 
another."*  Whetlier  the  courts  should  resi)ect  the  acts  passed  by 
the  votes  of  representatives  from  distri(;ts  not  entitled  to  tlieni  by 
a  constitutional  apportioinnent,  is  a  doubtful  ijuestioa.'" 

S  (J7.    Tlie  CeiisiiH. 

The  Constitution  directs  that  — 

"  the  actual  KmniK'ratiou  shall  be  made  within  three  Years  after  tiio  first 
]\Ioetiii;j:  of  tlio  (oiiiircss  of  tlie  I'nited  States,  and  within  every  siiliso- 
qiient  Tenn  of  ten  Years,  in  sneh  Manner  as  they  shall  by  l/iwdiiccl."' 

Tlie  lirst  reported  census  was  tliat  by  the  emperor  Yee  in  (liiiia. 
liOb")  I).  ('.:'-  unless  that  of  the  Hebrews  made  by  Afoses  in  tlie 
wiMerness  and  described  in  the  l)ook  of  Numbers  was  earlier.  In 
liiiiiie,  for  the  purpose  of  the  division  of  tlie  citizens  into  ('lassea 
and  centuries,  an  enumeration  was  taken  every  five  years  and  ful- 
lowed  by  a  sacrilice  of  i)urificatiou  or  lustration,  from  which  the 


'5  Nebraska  11.  Siiif;U'l(in,  2i  Neb.,  i")»i. 
liiil,  see  liiilliiiliiu'  I!.  Willcy,  2  Iiliiho, 
lliOS;  s.  e.  ;!I  rue.  liep.,  IM4. 

'8  Kinney  i).  Synioiise,  ;!0  fiiirbour 
{N.  Y.),  :)4a;  (ipinioii  of  Judge.s,  3;i 
Miiino,  fiW. 

"  Warren  v.  Miiyor,  2  Gray  (Mass.), 
m.  Mutiiliyi)  Kliey  (Miirylaml),  2  At). 
Hep.,  01(3;  Mcl'hersoii  v.  Bartlett,  05 
Cat.,  f)7r;  s.  c.   t  I'ac.   I!ei..,  .".SJ.    liut 


see  I'eopli^  v.  I'endcgast,  !)fl  (;al.,289; 
8.  c.  ;!1  I'ac.  Hep.,  W.i;  I'eoplo  r.  .Mark- 
bam,  Pfl  Cal.,  2(i2;  .s.  c.  .Tl  I'ao,  liep.  !"-■ 

'*  Allorney-General  i).  Uruilley,  ;16 
Mich.,  •147. 

'^  Conipiiro  Sliilo  v.  Fi'am-i-^,  25 
Kansa.«,  721;  and  10  (Iniy,  i;;:i ;  with 
baird  r.  Siipervisois,  I'M  N.Y.,'Jo,  111. 

§  (57.  '  Artielo  I,  Seelion  2. 

■■^  Applotou's  Kuoyelopa'diu. 


•] 


Tin;  CK.N'srs. 


411 


pi  rii)(l  (Iciived  llui  ii.inio  of  ii  lustnim.  Tin-  iiiune  of  ('eiisus  w;i!i 
(li'iiwil  from  tlio  oIlictT  in  i;liurj,re,  an  csthnator  oi'  toiisor.  In 
I  iiiiliiieiit^il  Hiiropc,  for  llie  jiiirj)ose  of  iidmi:u-;ti'ii;io!i  :ui(l  poliuci, 
suih  uiiiuiioralioiis  wcro  taken  in-i'L,nilarly  or  at  stati'd  intervals, 
l)uiin!;'  the  eij^lileentli  centnr}'''  none  was  taken  in  Ilii^laiul,  liow- 
cvcr ;  and  the  fu-st  Eiicrlish  census  seems  to  liave  lieen  tiiat  of  1  SOI .' 

The  coniniittee  on  revenue  under  llie  Arti(des  of  Cor.federalion 
rccMininended  an  amendment  to  provide  for  a  triennial  numbering 
(i|  llie  inhabitants  for  the  purpose  of  tlic  apportionment  of  taxa- 
tion.'' In  llie  Federal  Convention  various  propositions  concern- 
in:';  the  finio  of  the  census  were  submitted.  That  of  fifteen  years 
w.is  liist  adopted."  A  term  of  twenty  years  was  then  sugLa'sted. 
liiil  the  prf)i)osition  was  rejected;  and  ten  years  chosen  by  tlie 
vcit  s  of  ciLrht  States  to  two.' 

Tlic  direct  and  deidared  object  of  the  census  is  to  furiiish  a 
si  iiiilird  by  whiili  representatives  and  direct  taxes  may  be  ajjpor- 
lidiied  among  the  several  Slates  which  may  be  included  in  the 
I'liion;*  but  its  functions  have  been  extended  so  that  the  govern- 
liuiit  now  collects  at  the  same  time  statistics  of  all  kinds,  [^nder 
.>;iniilar  jn'ovisions  in  different  State  constitutions  general  statistics 
liivi'  also  been  usually  collected.  Governor  David  15.  Hill  of 
New  York  in  iS.So  vetoed  a  bill  for  a  State  census  upon  the 
L,'iii;nid  that  it  provided  for  the  collection  of  other  stitistics  besides 
■du  luunuM'ation  of  tht;  inhabitants  of  the  State.'' 

A  I'"e(lcral  district  judge  dismissed  as  not  sui)portcd  by  the  acts 
of  ( 'oiign.'ss,  an  iiulicttment  against  an  officer  of  a  Inniber  company' 
fur  his  refusal  to  answer  ipuvslions  concerning  its  capital  and  busi- 
iu:-s  asked  by  oOicers  taking  the  census  of  ISitH.      He  said:  — 

"It  may  not  he  amiss  to  sufjgest  tiiat  there  may  be  a  liaiit  to  the 
power  of  congress  to  compel  a  citizen  to  ilisclose  inforinalion  concern- 
iiiL.'  Ills  l)iisincss  uiHterlakiiiiis,  anil  tlio  luaiiiicr  in  wliicli  tiiey  ai'c  carried 
nil.  Tills  limit  must  relate,  not  only  to  the  kind  of  iiifoniiatiun  lie  may 
properly  refuse  to  disclose,  because  it  may  he  eqiiivalei.i  lo  tlie  appro- 


■1  Ibid. 

*  Encycloproilia  Britaiiniea. 
■'■  IClliot's  Doliaton,  2ii  cd.,  vol.  v,  p. 
Oi.     S.'o  siiprn,  ij  (11,  ovi'i'  iioto  13. 
'■■  Ibid.,  p.  ;)(II. 
'  Ibid.,  p.  y05. 


'  Cliict  JuHlico  Maisliall  in  Louj^h- 
boroutjli  V.  Ulakc,  5  WIuniIom,  Iil7, 1)21. 

»  Veto  iiu'BSuK<'  of  May  27,  1885. 
Stato  I'lipers  of  Crovcriior  Hill  for 
1885,  p.  154. 


41:2 


AI'rolITlONMKNT. 


[<'II.\I>.  VIII. 


])ii:iti()ti  of  piiviito  property  for  public  use  without  just  compensation, 
but  silso  to  till!  ixtcMitof  tiio  infornintioii  required,  an  well  us  to  the  time 
within  wliicii  it  Hli.'iil  be  ^iven.  Certnin  kinds  of  informatitiu  vahiahle 
to  the  public  iitid  useful  to  the  legislative  branches  of  the  governiui'iit 
as  the  basis  for  proper  laws  have  heretofore  been  vohnitarily  j;ivcii,  iiiul 
may  properly  be  required  from  the  citizen,  when  it  is  not  of  prdporly 
value,  or  when  the  collection,  compilation,  and  prepaiation  thereof  does 
not  impose  great  expense  and  labor  for  wliich  compensation  is  not  \n-o- 
vided.  It  is  not  infr('(|uent,  however,  tiiat  answers  to  (pieslioiis  pro- 
pounded in  some  sciiedules,  if  fully  and  properly  prei)ared,  involve  the 
collection  and  compilation  of  f:icts  tluit  require  the  labor  of  a  huf;c 
force  of  clerks  for  days  and  weeks,  entailing  great  expeib;e  and  e;n- 
barrassmeut  to  the  ordiiiai-y  business  of  the  citizen.  Is  it  within  the 
power  of  congress  to  make  such  answers  conipnl.-'ory,  and  ri'ipiii;'  the 
citizen  to  neglect  his  usual  bii.-iiiess,  with  loss,  and  to  i)rrpaie  this  in- 
formation at  !i  great  jjersonal  expense,  without  jiroper  couiijensation? 
Or  if  a  citizen,  by  his  long  experience  in  a  special  line  of  business,  ami 
by  his  superior  organizing  and  adniinslrative  ability,  has  so  syslenializud 
it  that  be  can  cany  it  on  at  a  mu<'h  less  expense  and  with  greater  faeil- 
ity  than  others,  is  it  right  to  compel  him  to  disclose  the  information  so 
acquired,  and  thereby  open  to  his  rivals  in  trade  the  methods  by  which 
he  has  been  able  to  outstri|)  them  in  the  sharp  comix'tition  for  busini'ss? 
Is  not  the  sj-stem  fo  established,  and  the  knowledge  so  acipiind,  as 
much  a  propei'ly  right  (o  him  r.s  the  laud  and  shop  in  which  he  conducts 
his  business?  and  can  he  be  ro;;ipelled  to  part  with  the  former  withdiil 
due  compensation  more  justly  than  with  the  latter?  The  zeal  with 
which  such  information  is  somelimcs  solicited  to  maintain  favorite  tlno- 
ries  of  public  oilicials,  or  to  aiTonl  the  basis  for  discussing  economical 
questions,  oflen  leads  to  excesses,  and  inqioses  upon  the  citizen  diitiea 
for  which  no  just  compensalion  is  atlorded,  either  in  money,  or  in  his 
proportion  of  the  reward  of  the  good  results  to  follow  to  the  ])ul)lic. 
As  before  stat<'d,  when  such  int'ornnition  is  re([uii'ed  as  the  basis  for 
pro[)er  legislation  or  the  just  enforcement  of  the  ixililic  laws,  the  power 
to  compel  its  disclosui,;  may  exist,  and,  if  unusual  expense  attends  its 
preparation,  [iroper  remuneration  to  the  citizen  can  be  nuide  ;  hut  the 
suggestion  that  information  having  a  |)ro[)erly  value  nuiy  be  demandi'd, 
which  the  citizen  may  not  be  obliged  to  impart  without  due  compensa- 
tion, so  earnestly  impressed  by  the  learned  counsel  in  this  case,  still 
renuuns  undisiposed  of,  and  a  i)roper  subject  for  consideration  by  con- 
gress in  the  future  legislation  that  may  be  needed  to  enforce  such  de- 
mands by  the  census  bureau.     Of  course,  these  suggestions  are  not  in- 


^  ''■^•] 


iiisToitv  or  imnccT  taxks. 


413 


ti'iiili'il  til  apply  to  tlio  power  of  coiiirross  to  coinpi'l  iinswers  In  riucstioiin, 
priipiiiiiiik'd  to  tlip  ollicers  of  niilroads,  ti'lofiiapli,  and  iiisniaiice  c 'nipa- 
iiiis,  corporations  of  a  piililic  character,  over  tlii>  Imsinpss  inc'lii'ds  of 
which  tli(^  K')^iHlativi'  ])owcr  may  lie  assorted.  As  to  such  coiporntions, 
the  piil>li('  good  re<piires  that  whoh'soine  and  strift  su|)ervision  should  be 
exercised,  and  all  the  informaiion  needed  as  the  basis  for  such  re^jula- 
tioii  and  control  should  bo  produced  when  retpiired."  '" 


jj()S.  History  of  tliR  ApportioiiiiKMit  of  Direct  Taxes  uiirtor  tlio 

(^(tiistitiitioii. 

Till'  only  direct  uixcs  wliicli  Concrrcss  hius  ajijiortionctl  liavu  liccii 
tuxes  oil  liiids,  houses  iiiid  sliivos.  Tlio  first  was  suggested  liy  a 
report  of  Secretary  Wolcott  on  direct  taxes  in  December,  IT'.'t!.' 
Thiit  apportioned  tlie  stun  of  two  millions  of  dollars  among  the 
.states  which  were  subdivided  for  that  purpose,  and  the  collection  of 
each  division  was  placed  under  tlie  control  of  a  commissioner,  with 
assistant  assessors,  collectors,  supervisoj's.  and  insjiecrnrs  to  assist 
liiiii.  The  quota  of  every  Stato  \\as  asscsseil  upon  houses,  lands, 
(iwelling-houscs,  and  slaves.  Houses  were  assessed  accin-ding  to 
a  cliissified  valuation  at  rates  uniform  througliout  the  eiitir,- conu- 
tiT;  anil  slaves  between  twelve;  and  fifty  years  of  age  at  lifty  cents 
per  head.  So  much  of  the  (piota  of  any  State  as  was  not  covei'cd 
iiy  the  levy  upon  bouses  and  slaves  was  assessed  upon  lands  and 
iiiierovements  ;it  such  rates  as  might  be  rciiuireil  to  make  up  the 
ileliciency.  The  tax  was  a  lien  upon  the  real  estate  and  slaves  of 
tlie  ]ii>rson  assessed  for  two  year.s  from  the  <late  when  it  bfcanu- 
payable,  and  collection  was  enforced  by  the  distraint  and  sale  of 
peisiiiial  property.^  Some  provisions  of  tlu;  act  were  taken  from 
tlic  i'.nglish  land  tax  under  William  III.'''  The  next  direct  tax  was 
under  the  .Vets  of  July  22,  1818.»  and  August  2,  ISl:?.''^  of  which 
till!  i'nrmer  provided  for  the  assessment  and  collection,  and  the  lat- 
ter for  the  apportionment.  Under  the.-e  acts,  taxes  of  three  mil- 
lions of  dollars  were  apportioned  among  the  counties  in  each  State, 
with  a  provision  that  the  Stnte  legislature  might  vary  the  county 

'".Iiiil^'e  nieks,  ill  ITnileil  Sl.'itos  r.  2  Act  of  July   14,    1708,    ch.   75,  1 

Miti'liill,    r)8    Fell,   r.,  97;i,   pp.  990-  St.  at  L.,  .5.1. 
lOUO.  'I  10  William  III,  eh.  9;   -1  GcorKo 

S("H.  1  State    Papers   ou    Finance,  III,  eli. '2,  §S  y.  ■'• 
vol.  i,  411.                                          .  •<  3  St.  at  L.,  '22.  «  Ibid.,  ^,3. 


414 


AIM'OUTIDNMKNT. 


[niAI'.  VIII. 


qiiotiis,  ])rovi(l(i(l  sucli  alterations  wero  <luly  curtilied  to  tlic  Sccrn- 
tai'v  of  the  Trcasuiy;  but  tliat  tliu  luvy  according  to  sucii  alti-.a- 
tions  Hliould  1)0  mado  by  virtue  of  the  act  of  Congress,  and  iidt 
under  the  act  of  the  State  legislature."  The  tax  was  levied  (Jii 
tile  value  of  laiuls,  houses,  and  slaves,  "at  the  rate  each  of  IImih 
is  worth  in  money."  The  act  provided  that  any  State  "  may  pay 
its  (juota  into  the  Treasury  of  the  United  States,"  and  thus  secmo 
ii  deduction  of  fifteen  percent  by  paying  before  February  10, 1«14, 
or  of  ten  per  cent  by  paying  before  May  1, 1814  ;  "and  no  further 
projeeding.s  shall  thereafter  be  had  under  this  act  in  such  state." 
Seven  States  under  the  act  assuiui^d  tlie  payment  of  tlieir  (pioias, 
in  the  other  eleven  the  tax  was  eolleete<l  by  l"\'der.al  ol'lieeis  liko 
the  tax  f)f  1798.'  In  1815,  an  act  was  passed  jjrovidiiig  lor  an 
annual  direct  tax  of  six  millions  f)f  dollars  to  be  eoUeetei!  suIf 
stantially  in  the  same  manner  as  the  direct  ta\  of  IHliJ."  In  IStiJ, 
th?  provision  for  an  annual  tax  was  repealed,  and  a  tax  of  lliitai 
million-i  of  dollars  imposed  for  the  current  year."  In  ISlo  aad 
181(i,  four  States  assumed  the  jriyment  of  tlieir  (juotas,  and  the 
collection  was  made  by  the  United  States  in  the  other  fouiteeii 
States.i" 

The  last  direct  tax  was  levied  during  the  Civil  War.  Tender 
the  Act  of  August  5th,  I8til,  a  direct  tax  of  twenty  milliniis  of 
dollars  was  imposed  for  the  expense  of  tlie  Civil  War,  wliieli  was 
to  be  collected  in  the  same  manner  as  the  direct  tax  of  ISJ.!." 
All  of  the  Northern  States,  except  Delaware  and  Colorado,  assuinoJ 
the  payment  of  their  quotas,  largely  by  credits  upon  their  accounts 
against  the  fiovernment  for  military  seiv  ices  and  e(|U!pme:i;s.     in 

Act    of    Jiinii.irv   0, 


»  Act  of  AiiKiist  2,  IKi;!,  §  f,;),  Si. 
at  L.,  71.  Vin-  iia  iucount  of  llio  iit- 
1('iii|ii  of  th(^  CoiMiiiltt('tM)f  Wii.vs  and 
Mo;ins  to  arrive  at  siicli  a  ooimly  aji- 
porlionincnt,  wo  tlii'ir  report,  Slate 
Papers  ou  Finance,  li,  f)28. 

'  Sliito  Pupei-a  on  Finance,  li,  HOO. 
Piinliiir  on  tlie  Direct  Tax  of  ISIil, 
Quarterly  Journal  of  Ecouoniles,  vol. 
lit,  •!;!«  443. 

«  Act  of  January  9,  1815,  eh.  21,  ,3 
St.  at  L.,  1(!4.  Tlio  Act  of  Jiiniiary  0, 
IKl,"),  eh.  21,  3  at.  at  L.,  211!,  ii|)|ilieil 
to  till)  District  of  Columbia  tlio  jno- 


virtions    of    the 
IHl,'-,. 

9  An  of  March  5,  IHIC,  cli.  21,  ;l  St. 
at  L.,  2r..",. 

i'>  Dunbar  on  The  Direct  Tax  cf 
1801,  Quarteily  Journal  of  Econoriiics, 
vol.  iii,  4:)(;  444. 

u  Ai't  of  Au^'ust  n,  eh.  4.'),  12  Si.  iit 
L.,  2!U,  tlic  Aet  of  Juno  7,  l.S(i2,  di. 
!i8,  12  St.  at  L.,  422,  anil  llio  .\.l  "t 
February  fi,  ]S(;:i,  eh.  21,  12  Si.  ir  L., 
('i40,  pioviilcd  for  the  eolleelion  of 
(his  tax  in  tho  iusurructiouury  ilia- 
tricls. 


j;  ii'.i.] 


DIUECT   TAXKS. 


415 


Dilawarc  and  Colorado,  the  (ax  was  collooted  with  other  iiitciiial 
iivcihk!  of  tlie  United  States  after  some  delay.  In  tlie  cli'vcn 
iiisuncctionary  States  and  the  Territory  of  Utah,  the  (iovoinineiit 
was  iirahle  to  collect  more  than  a  small  {lortioii  of  tin;  tax,  which 
was  (liiiie  thr()U5,^h  sales  of  lands.'''  The  attempt  to  coUeiJt  the 
Imlaiice  was  linally  abandoned;  and  in  18!>l,an  act  was  pas-sed 
ulii(  ii  provided  for  the  repayment  to  the  different  States  of  tlio 
aiiKiuiit  thus  advanced  by  them,  with  a  provision  that  when  any 
paitof  the  tax  had  l)een  collected  from  an  individual  tax-payer, 
the  State  of  which  lie  was  a  citizen  should  hold  in  trust  for  his 
iii'iictit  the  same  amount  of  the  mone\'  ri'turiied.'^ 

'11,1'  United  States  has  the  p-^wer  to  impose  a  direct  tax  upim 
tin;  iidiabitants  of  the  District  of  Coluinl)ia  or  the  territories,  or  to 
relieve  the  inhabitants  thereof,  oi'  a  part  of  the  same,  from  direct 
tiixation  without  legard  to  their  population." 

The  direct  tax  has  never  l)een  a  tax  upon  a  State,  hut  merely  a 
tax  upon  the  individuals  in  a  State,  which  in  certain  cases  the 
State  had  the  right  to  assume.'^  Congress  has  no  power  to  im- 
jMJMe  a  direct  Uix  upon  a  State. 


g  G».   Direct  Taxes. 

'I'lie  term,  direct  taxes,  when  used  by  modern  coon  •  'sts,  usu- 
ally denotes  taxes  of  which  the  b»u(len  falls  solely  upon  the  tax- 
l)ayer,  such  as  a  i)oll-tax  or  a  siiiuptuaiy  tax.  All  taxes,  the 
Imrileii  of  which  may  be  shifted  by  the  tax-[>ayer  upon  another, 
lire  called  by  them  indirect.'     'I'hey  dilT(,'r,  however,  in  the  ajiiili- 

'-  Diiiiliar  on  Tlin  Dlr.'ct,  Tax  of 
IW'il,  (^liiii'lerly  JotinialiU'  EcoMoiiiics, 
vol.  iii,  441-401. 

'■"2«St.  ntL.,ch.  40(;,  p.  822. 

'*  Lim},'lil)oroiigh  r.  Hhilio,  5  V.'liea- 
lon,  :!17. 

'•  V.  a.  u.  LoiiiHiaiia,  12:1  V.  S.,  ;!2, 
;t3. 

S  iV.i.  1  Tlio  Brilish  Norlli  AMierk-ii 
Alt  ciO  luiil  ;!1  Vic,  eh.  ;t,  ij  !»2|  pro- 
viilos  that  "ill  cacli  province  llio 
l<'Hislatiir(5  niny  I'xclusively  iiuiUc;  laws 
in  ii'lalion  (o  iii.-itl.orH  coming  witliiii 
tli<'  i-lasKcs  of  Biilijcels  iioxt  iiei'i'in- 
aflor  enumerated,   thut  is  to  eay : " 


.  .  .  "2(1.  Diri'ct,  Tuxaliiiii  witliiii  Hit) 
rnivi.'iee  iu  order  to  tlio  raising  of  a 
rLcveiiiii'  for  I'rovineial  parposes."  It 
liari  Im'ou  licid  that  tlu?  term  is  used 
Willi  tlu'wnso  given  to  it  by  modern 
economists  such  as  Mill.  (Banl;  of 
ToroMloi'.  Lanihe,  L.  R.  «  P.  ('.  272; 
12  .Vppi'ul  Cases,  51.");  Attorney-dcn- 
oral  , Quebec)  v.  Hood,  10  Apiieal 
Case-i^,  141);  that  a  stamp  aei  on 
policies  of  iiisuraueo  coin|ianics  was 
an  iiiilircct  lax  (Attoniey-Geiieral  v. 
Qiii'cu  Iiisiiraneo  Co.,  3  A|i|ieal  Case-s, 
lO'JO ;  Atloniey-deueral  (Quebec)  v. 
lleod,  10  Appeal  Cases,  141)  i  but  that 


41C 


APPOUTION.MKNT. 


[CIIAI-.  VIII. 


cation  of  tliis  classification,  and  the  subject  is  between  tiiuni  in 
great  confusion.^  Tliis  is  not  the  (listiiiction  iiiti'iided  by  tlu! 
Constitution.  'Hie  subject  in  our  constitutional  law  is  oiio  ''lx- 
cliisively  in  American  jiiri-iprudciicc.""  In  the  l-'cderal  ('(iiivni- 
(ion,  wiien  "  Mr.  Kiiij,'  askcil  wiiat  was  tlie  invcisc!  nieaiiiiiL,'  of 
<lii'ei't  taxation,  no  one  answered."'*  v\nd  it  is  as  liard  tof,nvetiie 
answer  niiw  as  tlitMi.  "  Atteiiipls  to  answer  it  liy  referciucc'  to  tin? 
di'liniiii)iis  of  jiolitical  economists  liave  l)ecn  frccjucntly  made,  Imt 
wiliiout  satisl'actory  results.  Tlie  eiiunicralion  of  the  ditlVrenl 
kinds  of  taxes  whieii  Congress  was  authorized  to  impose  was 
])rol),d)ly  made  with  very  little  reference  to  their  specidations."^ 
At  tliat  time,  the  Manchester  S(diool,  althou{,di  founded  by  Adam 
Smith,  had  not  obtained  authority.  Hmitli  was  never  nieiitioned 
in  tiie  Convention."  .And  lie  nowhere  clearly  applies  these  deii- 
nitions  to  the  tci'ins.  'I'iic  French  economists  liad  more  inliueiice 
upon  tlic  k'adci-s  of  Ameiiean  thought.  Tiieir  doctrine,  wliieli  is 
tlie  Imtt  (d'  Voltaire's  wit  in  "  I/JIomme  ii  (piarante  l'',cus,"  seems 
to  have  been  taken  fioin  the  writings  of  .Jolin  Locke."  Tliey 
taiiglit  that  agriculture  is  the  only  productive  emjiloyment;  iiiid 
that  :  .e  net  jirodtu^t  from  land,  wdiieii  is  found  in  the  hands  of  tlio 
land-owner,  is  the  only  fund  from  wliicdi  taxation  can  draw  with- 
out impoverishing  society.  Taxes  were  classilied  by  them  as  direct 
wlieii  hud  immediately  upon  the  land-owner,  and  as  indirect  when 
laid  upon  some  one  else,  since,  according  to  their  doctrine,  des- 
tined to  be  liorne  ultimately  by  the  land-owner.  'I'axes  upon 
land,  or  its  returns,  they  called  direct  taxes.  Taxes  upon  einii- 
nioilities,  or  consumption,  indirect.  Tluiy  disagreed  upon  the 
<]ues;ion  whether  taxes   upon    persons  were    direct  or   indirect.' 


II  1;ix  oil  banks,  proportioned  to  tho 
aiiioimt  of  their  paid-up  caiiitnl  niid 
llio  iiiiiiilicrol'  tlieir  odlcerH  is  a  direct 
tax  (I!aiilc  of  Toronto  v.  Lanitjo,  L. 
R.  fi  r.  C,  272).  S(>o  Clemnnt'B  Cina- 
diaii  ronstitution,  pp.  421  411.") ;  Don- 
lie's  Hiitlsh  North  Aiiieriea  Act. 

-Sec  an  nrliclc  hy  Prof.  E.  R.  A. 
Sellt,'ina!i  on  the  Iiicomo  Tax  in  ttio 
Forma  for  March  .I,  1891,  vol.  xlx, 
p.  48. 

8  Mr.  Justice  Swayno  In  Springer  v. 
V.  S.,  102  U.  8.,  586,  602. 


*  Madison  Papers.  Elliot's  Debates, 
2d  (>il.,  vol.  V,  p.  4.")]. 

'  Chief  Justice  Chase  in  Vcazic 
Bank  r.  Fenno,  8  Wall.,  5'J3,  541-542. 

I'  Supra,  §  fi,  note  1.  Si>c,  however, 
Gallatln'H  supsestion,  that  tlie  tenn, 
"cai)ilatlon  tax,"  was  taken  frem 
Adam  Smith,  In  Callatin's  W'iitin>;-f, 
AdaiiLs'  ed.,  vol.  iii,  pp.  74,  75. 

'  Dowt-U's  History  of  Taxation,  vol. 
11,  p.  124. 

«  L'Ordro  Naturel  des  Sool6t6s  Po- 
Utiques,  In  Dnlre's  Physlocrates,  474, 


§  '■•'■'•] 


DIRK<"r   TANKS. 


417 


Tiiri{()t,  however.  <'lassifieil  tiixca  upon  persons  lu  diicit.* 
Tin' iippoilioinni'nt  of  tuxes  upon  real  estate  liad  hi'cn  pievionsly 
apiilieil  in  I'ingliiiul  us  well  as  Kranee.  Tlu'  i'.njjjlisli  land  t;ix, 
sim  r  tile  reif^n  of  William  HI,  liad  l)een  apportioned  amoiinr  tlie 
comities  an-  other  local  sulxlivisions,  leaviufj  the  i-ite  for  each 
loi  alii y  to  he  settled  at  the  point  neeessary  to  jrive  the  <iue  (piota.'" 
Till'  l'"ren('h  taillf  rfelh,  a  tax  on  the  value  of  the  use  df  I'cal 
jinipi'ity,  waH  laid  hy  ajiportionnient  aniontf  the  proviinjes,  each  nf 
wliicli  determined  the  manner  in  whieh  its  (piota  should  he  "ol- 
kruil;  and  it.s  suhstitiiu-,  the  impol  foHi'iiT,  since  17!H),  has  lieen 
.similarly  eollected.  The  French  capitation  tax.  hcfore  the  IJcvo- 
Inlioii.  was  also  thus  eoUeetcd."  It  is  not  unlikely  that  the 
Fu'in'li  (lelinitions  were  in  the  mind  of  (louverncur  .Morris  when 
111'  introduced  the  term  direct  taxes  into  tlie  Constitution. '- 

The  same  uncertainty  as  to  the  meaniiiir  of  the  term  prevailed 
in  tlic  Slate  conventions.  In  that  of  New  York.  Chancellur  I.iv- 
iii;,'st()ii  said  that  direct  taxes  were  *•  taxes  on  land  and  sjieeilic 
diitii's"  as  distintjuished  from  an  impost  or  taritT  on  imports.'''' 
.Iiiy  (■(iM(nin"d  in  this  view,  saying:  "Direct  taxes  wei'c  of  two 
kimls,  jToneral  and  specitie."  The  national  jrovernment  would, 
witlioul  (loul)t.  usually  emhraco  those  ohjects  which  were  nni- 
foini  tliroujjfhout  the  States,  for  the  usual  specific  artit'les  of  liix- 
iiiv.'^     In  that  of  Virginia,  John  Marshall  said:  — 


I'll!  (JiH'sniiy's  uwooftho  terms  ill  ipii's- 
ti"ii,  K'o  Diiiro,  vol.  i,  pp.  H3,  1'27  ;  nnil 
tnrl)ii|i(iiil  do  Ni'niuiirs',  il)iil.,  vol.  ii, 
M'.  ;i5l  :i.-,S.  CiU'd  from  Tlmynrs Con- 
etiliitioiiiil  Casrs,  p.  1320. 

'In  Ills    plan    ho    lliiia    classi 
taxes:   "II  ii'y  on  a  quo  trois  possl- 
lili's:  -  -  L:i  (liroetii  siir  lea  t'onds.     La 


10  10  Willinin  III.  ill.  0.  Sec  Powell's 
History  of  Taxiilioii  and  Taxes  in 
Knplaiid,  vol.  iii,  pp.  'M  1)7. 

n  rizaid,  La  Franco,  en  17M9,  •2.")7; 
Do  Parinii,  Tiailf  d(>  I'lrapot,  vol.  i, 
pp.  ir,a,  224.  Cited  from  Thay(>r'.« 
Constitiilional  Cases,  p.  i;t2(i. 

12   This  origin  of  llie  |)hras.'  "diieet 


ilii'i'ilo  siir  les  persoiiiios,  (lui  dovient  taxation"  was  first  sutJKestcd  in  Ham- 
uli iiiip.it  siir  I'exploitution.  L'inipo-  iltoii's  brief  in  tlie  Carriage  Tax  ('use 
i-ilion  iiiilirecte,  on  siir  les  consomnia-  Cllamillon's  Works,  vol.  vii,  ji.  SITi), 
ti"iis."  See  also  to  tlie  paiiii'  offeet  and  was  denionst rated  in  a  valuable 
■tfioo.  Ill,  ell.  2;  his  "  Coiiiparaisoii  de  paper  by  Professor  Charles  F.  Dunbar, 
riiiipnt  surleHi>vemi  dps Propri.'l aires  on  the  Diri'i't  Tax  of  1H(!1,  Quart.  .Tour- 
rtili'l'Inip.'.t  Bur  lesCon.soniniatioiis,"  nal  Eeon.,  vol.  Hi,  p.  41)6  (A.  D.  1S89). 
which  was  a  memoir  prepared  for  the  Siiprn.^  G,  notes  1  and  2. 
usi' (if  Fraiililin.  Daire,  Pliysioernte.i,  '■■•  Klliot's  Debates,  2d  ed.,vol.  ii,  p. 
I.  304,  3!lfi,  409.  Cited  from  Thayer's  341. 
Constitutioual  Cases,  p.  1326.  "  Ibid.,  p.  381. 


41H 


Ari'OKTloNMKNT. 


[CIIAI.  \UI. 


"  'I'lii-  oliji'i'ts  of  (liivcl  tiixcH  iii(!  w»  II  iiiidcrHtooil.  'I'licy  lire  Init 
few.  Wliiit  mv  tlicy?  I.iiiuIm,  hIiivck,  wlock  of  all  k'uvlw,  and  ii  fuw 
other  artii'lcH  <if  donu'wlii!  pKiiicrly."  " 

III  1T'.l4  Coiij^ruHS  iniijosi'd  ii  l.ix  upon  ciiriiiif^cH,  to  lie  [laid  liy 
tliL'  owners  wlicifviT  tliuy  iiiijjht  Ik",  without  iiuy  inniortinniufiit 
amongst  tlie  soveml  States.  It  was  opposed,  Iwfore  its  i>;i»s;A>;f,  ns 
an  liiiapportioncd  diruct  tax,  and  consfqucntly  uiu'onHtitutioii.ii. 
Madison  wrote  to  Juft'uisou,  May  7tli,  IT'Jl :  — 

"Tim  tax  on  carringps  sueceedcMl  in  spite  of  tlio  Constiliitiini  l\  -a 
majority  of  twenty,  tlio  advocates  of  tlio  principle  beinf;  re-enfoicni  \.\ 
tlie  adversaries  tc  ''ixuries."  "  Some  of  the  motives  wliieh  liny  decuvdl 
to  their  Kiippo'  'it  to  preiiioMisli  them  of  the  danijer.      liy  liii'iiKih'j; 

donn  tlii^  lian  the  Constitnlioii,  and  ^ivinf;  sanction  to  tlii>  ;ili;i 

of  8iiiiiplii;iry  rt'^ulations,  wealth  may  lind  a  jireearious  defense  in  tlic 
sliieid  of  justice.  If  luxnry,  as  sneh,  is  to  be  taxed,  the  greatest  of  nil 
hixmii's,  says  I'aine,  is  a  great  estate."  '" 

Tiif  dauf^ur  wliicli  lie  foresaw,  at  tlie  end  of  a  iiundred  years  he- 
eaine  inauilest  to  all.  In  a  siibseciueiit  letter,  February  Ttli,  IT'.ni, 
lie  said  of  the  case  wliieli  uplield  the  tax  :  •'  There  never  was  a 
(|iiesti(iii  on  whieli  my  mind  was  lietter  satislied,  and  yet  I  li.i\e 
little  expectation  that  it  will  he  viewed  in  the  same  lij^lit  liy  tliu 
(•oiiit  tliiit  it  is  hy  me." ''  (Mi  the  arjfiinieiit  of  the  (inestioii  lie- 
fore  the  Sii[iri  me  Court  of  the  L'liited  States,  in  what  appears  to 
have  lieen  a  moot  <'a>;e."' Alexander  llamiltoii  was  selecited  to  icp- 
rt'seiit  the  j,'(iveriimeiit."'  He  showed  the  iiijustiee  of  th,<  appm- 
tidiiiiieiit  of  a  tax  of  this  ehanieter,  and  sugirested  that  a  ImuMiiiy 
line  between  direet  and  indirect  taxes  be  settled  by  "a  species  nf 
arbitration,"'  and  that  direc:t  taxes  be  considered  only  "capilaiion 
or  poll-taxes,  and  taxes  on  lands  and  buildings  and  geneial  as- 
sessments, whether  on  the  whole  property  of  individuals,  or  dii 
tlicir  whole  real  or  personal  estate.  All  else  must,  of  necessity, 
be  considered  as  indirect  taxes."    His  views  2Ji'evailed.   TheComt 


ii*  Ibid.,  vol.  iii.  p.  22!). 

1°  llaiiison's  Wiitiiiga  (Ctingros- 
sloiial  ed.),  vol.  ii,  p.  11. 

"  Iliid.,  p.  77. 

>"  It  is  hard  to  lieliovo  tlmt  Hylloii, 
Iho  defonduiil  in    the   Circuit   Court, 


dn'd  and  tweuty-llvo  <'li.iriot.s,  "kept 
("xclusively  for  tlio  dofendiiiit's  o>™ 
[irlvato  use  and  not  to  bo  let  out  for 
liiro  or  for  tlio  couveyanco  of  piivonn 
for  III  re." 

"  His  brief  on  tho  "  earriiige  liix" 


hud,  us  stated  iu  tho  report,  ouo  huu-       is  still  in  exigtonce,  aiid  may  be  found 


§.;o.] 


DIltKCT    TAXKS. 


419 


held  that  u  tax  on  plciisiirc-i'iirriajfiis  was  not  a  direct  tax.^'^  Tlio 
iiiiiiii  iTiiiund  of  the  judgment  was  llius  stated  l)y  .Mr.  .lustieu 
(  liase :  "It  appeal's  to  mo  that  a  tax  on  carriages  cannot  Ijc  laid 
liy  ihe  rule  of  apportioinncnt  witliout  vciy  gieat  inequality  and 
iiijiistiee.  l'"or  example,  suppose  two  states  ccpial  in  census  to 
|iiiv  eighty  thousanil  dollars  each  liy  a  tax  on  caiiiages  of  eiglit 
(iiijlais  on  every  carriage ;  and  in  one  State  there  arc  one  hun- 
(hvd  carriages  and  in  the  other  one  tiiousand.  The  owners  of 
cuiiiigcs  in  one  State  would  pay  ten  times  tiie  tax  of  owncs 
ill  the  oilier.  A  in  one  State  would  pay  for  his  carriage  eight 
(Idllars:  liut  15  in  the  otiier  State  would  pay  for  his  carriage 
eiglity  dollars."^' 

.hid^e  I'ateison  said  :  — 

••  Wliftlier  (lirt'cl  taxes  in  tlie  sense  of  the  Constitution  comprehend 
any  other  tax  tliiin  a  capitation  tax  and  a  lux  on  land  is  a  (Hii'stioiiidiie 
jKiiiil.  It  Coiitiress,  fur  instance,  should  tax  in  tiii'  a^uie^iate  or  nia.^s. 
tliin;is  that  were  <ieneialiy  a|)pi'oved  liy  tiie  States  in  tlie  I  Jii<jn.  tin  ii, 
pniiiips,  till'  rule  of  apporlioniiient  would  lie  the  most  inopei',  especially 
if  nil  assessment  were  to  inteiveiie.  This  iii)i)e!irs  fioin  the  pnuiiee  of 
Mniie  of  the  States  to  have  been  considered  a  direct  taxation.  Whither 
ii  lie  so,  under  the  Constitution  of  the  I'nited  Stales,  is  !i  niMilcr  of 
some  dillieully  ;  Imt  as  it  is  not  hefoie  the  court  it  would  lie  iiii|)ri)per 
to  <,'ivo  any  decisive  opiiuon  upon  it.  I  never  entertained  a  doubt  that 
tile  ]iriiipipal  —  I  will  not  say  the  only  —  olijects  that  the  franiers  of  the 
{'iiiisiitiilion  eontemphiled  as  falliiii!;  within  the  rule  of  afiportioiiinent 
were  a  capitation  tax  and  a  tax  on  land.  It  ia  not  necesiary  to  deti'r- 
iiiiiio  whether  a  tax  on  the  product  of  land  be  n  direct  or  indirect  tax. 
Perhaps  the  immediate  product  of  land,  in  its  ori!j;inal  and  crude  stale, 
ouiiiit  to  be  eonsiilered  as  the  land  itself;  it  makes  part  of  it,  or  else 
tlie  ]ii()vision  made  against  taxing  exports  would  be  easily  eluded. 
Land  independeiilly  of  its  produce  is  of  no  value.  All  laxes  on  ex- 
penses or  consumption  are  indirect  taxes."  " 

For  one  hunilred  years  this  decision  was  treated  as  a  liiiiil  set- 


in  Iliiiiiilioii's  Works,  1st  I'd.,  vol.  Ix, 
I'.SS.s  ;  ,111(1  -2(1  ed.,  vol.  vii,  p.  H45.  Ac- 
ciMiliiij,'  to  Juilfjo  Tuoker,  Juliii  Mnr- 
slinll  look  part  in  t!io  arj^uuiont  at 
W.i-liuij,r|,iii  Hiul  was  "supposed  to 
liiivi'  di'lV'iidi'd  his  owu  private  opin- 
ion."    i^Tuekur's   BlaeliBtoue,    vol.   i, 


Appi'udix,  part  1,  ji.  '2'.)i.)  Tlicro  is 
no  record  of  liis  appeaniiice  In  tlio 
Hull.  (I'dllock  V.  Fariiii'i-'s  liouii  and 
Trust  Co.,  l.")S  XT.  S.,  COl,  C.iJU.i 

-■J  Hyllon  r.  U.  8.,  3  Dallas,  171. 

21  Iliid.,  p.  174. 

23  Ibid.,  p.  177. 


420 


AlM'OHT[ON'.\rr.S-T. 


[ciiAi'.  viir. 


t lenient  of  the  question.  In  liis  "Sketoh  of  the  Finanpus  of  tlu! 
United  States,"  puljiislied  in  November,  171H),  Albeit  (ialiiiliii 
said :  — 

"The  most  generally  received  opinion,  however,  is  that,  by  diicct 
taxes  in  the  Coustitutioii,  those  are  meant  wiiieh  are  raised  on  the  capi- 
tal or  revenue  of  the  pcoi)ie,  liy  iutlircet  means,  such  as  are  raised  on 
their  expense."  '•  'I'liat  (>pini(jii  is  in  itself  rational,  and eonforn«il)le  to 
the  decision  which  has  taUen  place  on  the  subject  of  the  carriage 
tax."=' 

Five  times  has  Congress  imposed  direct  taxes  which  were  aj> 
portioned  among  the  States,  and  in  each  case  hind  and  slaves,  who 
by  the  hiws  of  some  States  were  real  estate,  alone  were  ineiudeil.''" 
Congress  acted  iqion  this  rule,  with  the  approval  of  Madison,  by 
the  imposition  of  taxation  without  apportionment  upon  speeilic 
articles  of  peisonal  property  within  IIm'  Uinted  States,  siieii  as  the 
tax  on  (h>niestic  manufactures.-'' and  iijion  "all  iiousehold  furni- 
ture kept  for  use,"  and  gold  and  silver  watches.-'"  The  exigencies 
of  the  Civil  War  strained  tlie  resources  of  both  parties  to  the 
utmost.  The  Confederate  authorities  had  more  hesitation  over 
constitutional  scruples  than  tlujse  of  the  United  States,  and  the 
fall  of  their  government  was  hastened  by  their  inability  to  raise 
funds  thi'ough  direct  taxation,  an  api)ortionnient  being  imi)ossilile 
without  danger  of  jealousies  and  consequent  disruption.-"  Tiie 
United  States  im[)()sed  a  tax  upon  successions  to  real  and  pcrsouiil 
property,  taxes  upon  the  gross  receipts  and  profits  of  corijinatinns. 
a  tax  upon  in)tes  i.ssued  by  bunks,  a  tax  uiHin  unmanufactured 
eiitton,  and  a  tax  upon  all  incomes  above  moderate  amounts,^  All 
of  these  were  held  constitutional;^  the  cotton  tax,  which  wus  at- 
tacked as  hotli  a  direct  tax  and  a  tax  upon  exports,  by  a  divided 
court.'!" 


*' OfUlal ill's  WritliiKS,  Adams'  eil., 
vol.  ill,  p.  71. 

■"  Sujira.  §  ns. 

'«  Aet  of  .Iiiii.  18,  1H15,  H  Si.  at  L., 
p.  ISO. 

'■»  Ibid.,  p.  180. 

2'  Supra,  §  ;t7,  iiolcBfi. 

^  All  of  tliese  lilts,  except  those 
iniposlugthesucpOBBioiiiiiid  the  cotton 


tax,  ari^  reprinted  in  the  Appeiuiix  to 
Foster  and  Abbot  on  the  Income 'I' ix 
of  1H!)4. 

■-■'  I'lieille  Insuranee  Co.  v.  Hoiile.  " 
Wall.,  4:1;);  Venzie  Umik  v.  Fenno.  N 
Wall.,  533,  MO;  Selioley  v.  Uew,  2:t 
Willi.,  .131 ;  Springer  r.  U.  S.,  1()'2  U.  H., 

r>H(i. 

3"  .Supra,  §  3H,  note  117. 


^ 


§  (jtl.]  DIKECT   TAXES.  421 

In  the  case  which  lield  that  thu  cfcnenil  tax  upon  incomes  was 
not  a  direct  tix,  Mr.  Justice  Swayiie  said:  — 

••  Our  conchisioni?  are  that  direct  taxes  within  the  meaning  of  the 
Constitiilion  lire  onlj'  cai)itation  taxes  at*  expressed  in  that  instrument, 
and  taxes  on  real  estate."'' 

After  tlie  income  tax  liad  been  collected  for  more  than  six  years 
and  some  of  tiie  decisions  which  sustained  it  had  been  made,  tiie 
section  of  tlio  Constitution  I'eiating  to  the  apportionment  of 
representatives  ;iud  direct  tiixes  was  amended  by  tiie  Fonrteenlh 
Amendment  so  as  to  change  the  rule  as  to  representation;  init  that 
as  regards  taxation  was  left  unaltered,  it  lieing  tiie  general  un- 
derstanding tliat  it  did  not  apply  to  taxes  upon  ineonie.''^ 

In  18'J4,  in  reliance  upon  this  construction  of  the  Constitution, 
in  which  all  tlu'ce  of  the  departments  of  the  government  and  tlie 
States  had  ac(iuiesced,  an  attempt  was  made  by  its  aid  to  accom- 
jilisli  that  wliich  tlie  section  had  been  adopted  to  prevent.  The 
representatives  of  the  new  States  in  the  West  against  wliose  action 
(Touverneur  .Morris  had  warned  the  otiier  members  of  the  Con- 
viiitioii.  combined  witli  those  of  the  South  to  oppress  the  .States 
npiiii  the  Nortli  Atlantic  coast.  An  iiiiapportioncd  income-tax 
was  imposed  upon  tlie  revenu-s  of  individuals  exceeding  four 
thousand  doUari,  and  on  corponte  incomes  of  all  amounts,  with 
the  exemption,  however,  of  some  of  the  richest  in  the  country, 
such  as  mutual  insurance  companiea  and  ecclesiastical  coi'porar 
tioiis ;  of  wiiich  at  least  four-iifths,*'  and  probably  a  iiuicli  larger 
pioportioii,  was  jiayable  l)y  four  States, —  New  York,  New  .leisey, 
l\'niisylvania  and  Massachusetts, — wiiile  in  a  number  of  the 
States  th  it  voted  for  it  tlie  incidence  of  tlic  tax  did  not  al'i'ect  more 
tli;iii  a  very  few  individuals.  The  constitutioii;!lity  of  tiiis  pro- 
ceeili)ig,  by  the  consent  of  tlie  Attorney-(ieiieral.  wlio  waived  all 
questions  of  jurisdiction,  was  brought  before  the  Supreme  Court 
hi'fore  tlie  tax  was  payable.  In  their  first  decision  the  court  lield 
unaiiiinously  that  so  inticli  of  the  tax  as  ap[ilied  to  the  income 
finni  municipal  bonds  was  void,  since  those  securities  could  not  be 
taxed  by  tlie  United  States;  and  by  a  majority  of  four  to  two,  that 


"  SprlnKrr  v.  V.  8.,  102  U.  8.  nsc, 


602. 


■'■-  Si'c   till'   (llBHuut  of  Mr.   JuBtlco 


While   in   I'olldik  r.    Fun 's  Loan 

ami  Tnisl,  Co.,  ir)S  I'.  S.,  (iOI,  Tl.^. 
*•  Mr.  t'hoatc'rt   AryuiiU'Ul  iu  Pol- 


422 


APPOIJTIOXMEXT. 


[CHAI'.  VIII. 


soiinicli  iis  a[)i)lie(l  to  rents  was  also  void,  as  a  tax  upon  rual  r  tale, 
and  coiisiNHU'nily  a  diivel  tax  whicli  must  1h!  apportioned.  'I'licy 
divided  (;(iually  on  tlie  questions  whether  the  invalidity  of  iliis 
part  destroyed  the  rest;  and  whether  tlie  tax  on  the  general  iii- 
cotne  from  personal  [)ropert3'  was  also  void  as  a  diiec^t  tax.'*'  A 
rearj^unK'nt  was  ordered,  whieh  Mr.  Justiee  Jackson,  whose  illness 
liad  preventeil  his  previous  presenec.  left  his  death-hed  to  attiiiiil. 
He  voted  to  sustain  all  of  the  act  that  did  not  apply  to  muniin- 
pal  bonds;  but  Mr.  Justiee  Shiras,  who  on  the  first  deeision  had 
voted  to  sustain  so  niueh  as  did  not  ap[)ly  to  rents,  changed  his 
mind;  and  by  a  majority  of  five  to  four  the  whole  ineome-tax 
wa ;  held  to  be  void,  iis  a  direct  tax  whitdi  had  not  been  apiiortioned.* 
Jn  consiMiuenee  of  this  deeision  the  only  delinition  of  <lireet  taxes 
that  can  be  formulati'd  with  an}- assurance  is  as  follows:  nireet 
taxes  are  taxes  on  land,  poll-taxes,  and.  as  long  as  a  majority  of 
the  Supreme  Court  are  of  the  same;  mind,  taxes  (Ui  rents  and 
general  taxes  ufion  jiersonal  i)i-operty  and  incomes  whieh  are  not 
conlined  to  a  special  chuss,  although  with  huge  classes  of  exeinj>- 
tions.'*' 

The  arguments  on  either  side  of  this  great  case  are  so  masterly 
jirescnted  in  tlie  opinions  and  t!ie  briefs  of  counsel,  that  a  sinn- 
inary  would  be  not  oidy  inade(]uate  Ijut  superfluous.  Is'ow  tiiiit 
the  dust  has  not  yet  gathered  upon  the  pajjcrs,  it  seems  impossible 


lock  r.  Fiirnii'r's  Loan  and  Trust  Co., 
im  V.  H.,  129,  r,X\;  David  A.  Wells  in 
The  Foruhi  for  March,  lHa4,  vol.  xvii, 
1>.  1. 

■'  riiUiick  »'.  I'")irmc>r'M  Loan  and 
Trust  Co.,  l',7  V.      ,  4'>'.). 

•"'  I'liilock  r.  .  ..niKTs  Loan  an<l 
Trust  Co.,  I.JS  U.  S.,  001. 

'■•' Tho  Cons; it ul  ion  of  Jtassaclui- 
selts  (I'art  I[,  f'li.  I,  Art.  IV  >  gives  to 
till'  OcMi  nil  (,'ourl  jiowcr  "  to  iiniioso 
and  li'vy  pioixirtional  and  rcasonalilo 
assossniiMils,  rales  and  ta.xes  iipoii 
nil  the  iuhaliitants  and  persons  real- 
dent  and  osUites  lying  within  tho 
naid  Commonwealth;  and  also  to 
Impose  and  levy  reawonable  dnlies  and 
excises  upon  any  produce,  goods, 
wares,  morchandisea  and  eoniniodities 


whatever,  luought  Into,  produowl, 
manufai'tured  or  being  within  the 
same."  It  has  been  held  that  taxes 
upon  occupations  fporthmd  Hank  r. 
Aplhorp,  12  JIass.,  'iit'l,  'i.V!),  smi'i'CS- 
sions  of  every  character  (SFinot  r. 
Wintiuop,  ICii  Mass.,  113  ,  and  cor- 
porate franchises  (Coinmonwe.'ilth  r. 
Ilamilti  n  Manufacturing  Co.,  12  .Vllon 
( JIass. V  .".)H,  HOT;  H.  c.  as  Hainillcm 
('onipa'i'  r.  Massachusetts,  i\  W:ill.. 
(!l!2 ;  (^ominonweaUh  i'.  Provident  la- 
stilution,  12  Allen,  .'!12;  s.  o.  as  Provi- 
dent Institution  v.  Massachusetl-*,  C 
Wall.,  till;  Conniionwealth  r.  Lan- 
caster Savings  Bank,  123  Mass.,  W, 
Connecticut  Insurance  Co.  f.  Oim- 
inonwealth,  133  Mass.,  IG),  are  "I'xcloeB 
upon  conimoditleB." 


] 


I)ii;k(T  taxks. 


423 


liir  ;i  coiiiiiicnt'.ilor  to  disiiss  the  qiiuslion  wiilioiil  liias.  r\ui\  wc  im 
liL-  so  iMsh  iis  to  nttem|)t  to  add  to  what  was  said  hy  the  eniiiieiit 
iiii'ii  who  were  engat^ed. 

Tliti  reasons  assigned  by  the  majority  were  chiotly  liistorieal, 
(li'sjnned  to  show  that  when  the  Coiistitulion  was  achipted  such 
:i  tax  would  have  been  considered  as  direct,  and  necessarily  apjior- 
tioiicd.  In  this  it  seems  that  they  were  succfssl'ul.  'J'he  cliief 
r.liimce  of  tlie  minority  was  on  tlie  principle  xlitrf  dtciisis.  They 
Kiiitt'iidcd  that  the  court  ought  not  to  overturn  a  construction 
(if  tlie  (V)nstitution  settled  by  re[)cated  decisions  of  their  predc- 
cissnrs  in  the  juiliciary  as  well  as  iU'fs  of  th"  other  two  ilcpart- 
iiicnts  of  the  government,  \\liich  they  contended  liad  been  un- 
(lislurbi'd  for  over  one  hundred  yeai-s.  They  argued,  moreover, 
iliiit  the  impossibility  of  the  just  apportionment  of  such  a  tax 
pMivcil  tliat  it  could  not  be  wiUiin  the  intention  of  the  Constitu- 
liiiii;  tliat  the  decision  crippled  the  United  Stitcs  by  depriving 
tlii'iii  of  a  jMiux'r  wliich  miglit  be  indispensaltle  to  the  snccessful 
(■(iii(hiit  of  a  foreign  war,  when  their  ports  were  blockiidcd  and 
.s(i  ■  revenue  could  be  derived  from  a  tariff;  thit  it  [icrpetu- 

Mli  >  'in   of  taxation  unfair  to   the  i»i  r:  and   finally  tiiat 

it  pre\t  iii.u  i!ic  iMiiimt'nt  from  ini[ii'  iiu'  upon  the  rich  their 
just  share  of  ll^       liilic  iiurdens. 

One  effect  of  the  decision  ]\\s  l«'en  salntury.  It  has  def.'itcd 
im  oihous  scheme  of  class-1 -gislition.  If  uplield  it  will  be  n  safe- 
il'iiiiil  to  property  from  any  spoliation  ni"'cr  tli;'  guise  of  I'\'(icral 
lixiition,  give  encouragement  'i  a  licu  liodiine  of  State  rights 
tliiit  may  be  of  other  assist. iire  in  the  future,'''^  and  alTord  a 
ilicciv  to  waste  of  the  national  treasury.  I'pon  the  other  hand  it 
his  raised  an  obstacle  against  the  further  r(Hluction  of  an  oji- 
prcssive  tariff.  It  lias  sliorn  the  I"'  'ted  States  of  a  power  that 
iiiiglit  bo  essential  to  their  pre>  u  in  case  of  war.     And  it  has 

given  a  blow  to  settled  princip.  ^  uf  constitutional  construction 
which  makes  no  decision  of  the  past  secMU  any  longer  secure.'^ 


"  Sco  mijirn,  §  11.  (lin(Mrt»s  llio  rules  for  tlio  uouatructioii 

"*  ill  till)  lust  volume  the  writer  will      of  the  Couslltutiou. 


APPENDIX   TO   CHAPTER  VIII. 


JEFFERSON'S   OPINION   ON   THE   APPORTIONMENT  OF 

1792. 

"  TiiK  Constitution  has  (Icelarccl  that  representatives  and  direct  taxes 
shall  be  apiiortioued  among  the  tteveral  States  according  to  tlieir  respeo- 
.tive  numbers;  that  the  numlier  of  representatives  sliall  not  exceed  one 
for  every  ;U),000,  but  each  State  shall  iiave,  at  least,  one  representa- 
tive ;  and,  until  sucli  enumeration  sliall  be  made,  tiie  State  of  New 
llampsliire  shall  be  entitled  to  choose  three,  Massiichusefts,  &c. 

"Tiie  bill  for  apportioning  representatives  among  tlie  several  States, 
without  explaining  any  principle  at  all  which  may  show  its  conforiiiily 
with  the  Constitution  or  guide  future  ai)portioninents,  says,  that  New 
Hampshire  shall  have  tluee  members,  .Massachusetts  sixteei\,  &.c.  We 
are,  therefore,  to  liiid  by  experiment  what  liaa  been  the  principle  of  llio 
bill;  to  do  which,  it  is  proper  to  state  the  Federal  or  represenlalile 
numbers  of  each  Staie,  and  the  members  allotted  to  them  by  the  hill. 
They  are  as  follows:  — ■ 

"  V'ermDiit M.").-):i2  ,"! 

New  Hampshire 141,S'J.'i  .") 

Massachusetti 47.").;|-J7  Ifi 

Khiide  Island       i;s,l44  -2 

CouncclicuL 'j;i."i,!i-|  1  S 

New  York        .'i.")-J.!ll.")  11 

New  .Jersey 171t,'i."ili  (i 

Pennsylvania        4;i-.'.SS{»  14 

Del.iware ")."i.,"i;!,S  -J 

Marvliind L'7S,:il;!  1) 

\'irginia (i:!(l,."i."iS  21 

KrutucUy (iS.Ti).")  2 

Norlli  CaniliiKi .■!."i:i,:i-_'I  11 

Smith  Carolina -Jdi^Jiid  7 

tieiirjxia 70,84.'i  •-> 

;i,(i;t(i,.ui2         iiio 

"  It  happens  that  this  representation,  whether  tried  as  between  great 
and  small  Slates,  or  as  between  North  and  South,  yii'ids,  in  the  presi'iit 
inslanec,  a  tolerably  just  result,  and  eousciiuently  could  not  be  objcelod 
to  on  that  ground,  if  it  were  obtained  by  the  process  prescribed  in  the 

4i!4 


Al'TKNUIX.]  ,IKI''FKi;SON    (JN    Al'l'OItTIONM  IINT.  425 

( (iiistitiiUoii ;  but,  if  obtained,  by  any  process  out  of  that,  it  becomes 
iiKiilinissible. 

'•The  tii'st  member  of  tlie  clause  of  the  Constitution  above  cited  is 
px|iii'ss,  —  that  representatives  siiall  be  apportioned  auionj;  the  several 
Sliiles  according  to  their  rfsiwclire  vnnibcrs  ,■  that  is  to  say,  they  shall 
be  apportioni'd  by  some  common  ratio,  for  prajiortum  and  r(tli(>  are 
eqiiivaleMt  words  ;  and  it  is  the  definition  of  j)r')/w(7('oii  anwiiij  ii  nut  hem, 
tlial  they  have  a  riitio  common  to  all,  or,  in  other  words,  a  common  di- 
risnr.  Now,  trial  will  show  that  then'  is  no  comnioii  ndio  or  dirisor 
wliicli,  applied  to  tlie  numbers  of  each  Stale,  will  give  to  them  the  num- 
lur  of  representatives  allotted  in  this  bill ;  for,  trying  the  several  ratios 
of  l".i,  'M,  31,  !i2,  ;!;),  the  allottments  would  be  as  follows:  — 

29  30  ;ii           32  XI  TiiK  Dill. 

"  \'prmi)Mt 2  2  2           2  2  :i 

New  Iluinpshire   ....  4  4  4           4  4  ."> 

.Miisxiicluisclis K)  1,-1  1,-)  14  n  Hi 

Hhodc  Island 2  2  2           2  2  2 

('DUMeclicul S  7  7           7  7  >< 

New  York 12  11  11  11  10  11 

New  .li'i-scv 0  ")  ,-(            T)  .■)  (') 

I'rinisvlvaiiia 14  14  i:i  l:i  l.(  14 

Delaware 1  1  1            1  1  2 

Maryland it  \)  H           S  S  >.» 

\iruinia 21  21  2(1  1!)  1!)  21 

KeiilueUv 2  2  2           2  2  2 

Norlh  Carolina      ....  12  11  11  11  111  12 

Sdulh  Carolina      ....  7  •!  <i           Ii  <!  7 

(ieorgia 2  2  2           2  2  2 

lis        112        ID'.t        111"        1(1.-,        120 

"'riieiitho  bill  rever.><es  the  constitutional  precept;  because,  by  it, 
ri|iresenlatives  are  iial  apportioned  among  the  several  States  acconling 
111  their  re--p('(iive  numbers. 

'•  It  will  be  said,  that.  Iliou'ih  f(U'  t<i.)-'n  there  may  always  be  found  a 
iii\;sor  which  will  apportion  tlicni  among  the  .Stales  according  to 
iiiiinlii  rs  eNactly,  without  leaving  any  remainder;  yet  Uw  rciircioiUilircs 
there  can  lie  no  such  common  ratio,  in'  divisor,  which,  applied  to  the 
several  mimbers,  will  divide  them  exactly,  without  a  remaiudir  or  frac- 
ticiu.  I  answer,  then,  that  lo.rcs  nmsl  be  divided  crnrtbi,  and  rrjir<i<ciit- 
(tllri'ti  as  nctirbj  as  the  ncnrcxl  ratio  will  admit,  and  the  fractions  must 
tic  neglected  ;  because  the  Constitution  wills,  absolntely,  that  there  bo 
ill!  (i/iiKirlioiimciit  or  comihon  rotio;  and  if  any  fractions  result  from 
tlie  operation,  it  has  left  them  iniprovided  for.  In  fact,  it  could  not 
hilt  foresee  that  such  fractions  would  result,  jind  it  meant  to  submit  to 
tlieia.     It  knew  they  would  be  in  favor  of  one  part  of  the  Union  at  one 


4-jt; 


.IK!"l'i:i!S:iN    ON    AIM'OIITIONMKNT.  [rilAI'.  VIII. 


tinu>  and  of  another  part  of  it  at  anotlier,  bo  as,  in  tlie  end,  to  Imliiiipp 
occii.siona!  inoqiiiilitics.  IJiit,  instead  of  siicli  a  siiirjln  common  ratio  or 
uniform  divisor,  as  prcspribod  by  flic  Constitiition,  tlic  liill  lias  a|-.plifil 
ticn  ratios  at  least  to  tlie  different  States,  to  wit,  that  of  3(),()2(!  to  tlic 
seven  followinfj;.  iUiode  Island,  New  York,  Pennsylvania,  jMaiyland, 
Virginia,  Kentucky,  and  Georiiia;  and  that  of  27,770  to  the  eiglit  oth- 
ers; namely,  Vermont,  New  llami)shire,  Massacluisetts,  C'onueetieuf, 
New  Jersey,  Delaware,  North  Carolina,  and  South  Carolina.  A.s  fol- 
lows :  — 


Hlioile  Island,          08,444  [  3  2  I  Vermont,                  8;i,r);i2i~  !3 

New  York,  .'5ri2,!»ir)  I  o  11  New  Hampshire,  141,S-_>;i   j-"  5 

IVnnsvlvania,  4;i2.8,S0  i "  j,  14  Massachusetts,  47fl,:J27    '.^^  IB 

Miirvland,  278,.'>i:{ ! -*.j:  '.)  Connecticut,  23.j,il41    -^  >  8 

Viriiiiiiii,  (m0,r)58  j -g  '"  21  New  Jersey,  ]7!»,r).'')(i   "5  -»  fl 

Kentucky,                  (18,705   2  2  .Delaware,                   55,.");58   3  2 

Georgia,                     70,843  i  .i:  2  |  North  Carolina,  :\r,:],r,2l\.i:  V.l 

\^  II  South  Carolina,  20(i,2.'iCi^  7 

"And  if  two  ratios  may  be  applied,  than  flfteen  may,  and  (lie  dis- 
tribution becotne  arbitrary,  instead  of  beinsj;  apportioned  to  nuiiiliers. 

"  Another  member  of  the  clause  of  the  Constitution,  which  has  hocn 
cited  says  '  the  number  of  representatives  shall  not  exceed  one  for  cvi'iy 
■■iO,()()0,  but  each  State  shall  have  at  least  one  representative'  Tliis 
last  phrase  proves  that  it  hud  in  contemplation,  that  all  fractions,  or 
viimbcrs  bi'luw  the  common  ratio,  were  to  be  unrepresented  ;  and  it  pio- 
vides  specially  that,  in  the  case  of  a  State  whose  whole  number  .shall  lie 
below  the  common  ratio,  one  representative  shall  be  (jiven  to  it.  This 
is  the  single  instance  where  it  allows  a  representation  to  any  smaller 
number  than  the  commoii  ratio,  and  by  providing  specially  for  it  in  this, 
shows  it  was  understood  that,  without  special  provision,  the  smaller 
number  would,  in  this  case,  be  involved  in  the  general  principle. 

"The  llrst  phrase  of  the  above  citation,  that  '  the  number  of  repre- 
sentatives ehall  not  exceed  one  for  every  30,000,'  is  violated  by  this 
bill,  which  has  given  to  eight  States  a  number  exceeding  one  for  every 
30,000,  to  \wt,  one  for  every  27,770. 

"  In  answer  to  this,  it  is  said  that  this  phrase  may  mean  either  the 
thirty  thousands  in  each  Sl<tte,  or  the  thirty  thousands  in  tho  n-lidle 
Union;  and  that,  in  the  latter  case,  it  servos  oidy  to  lind  the  amount 
of  the  whole  representation,  which,  in  the  present  state  of  popiihilimi, 
is  one  hunilred  and  twenty  members.  Suppose  the  ])hrase  might  liear 
both  meanings,  which  will  common  sense  apply  to  it?  AVhicli  did  the 
universal  understanding  of  our  country  apply  to  it?  Which  did  the  .Sen- 
ate and  Representatives  ap]>ly  to  it  during  the  pendency  of  the  first  bill, 


Ai'i'ioNiiix.]        .ir.Ki  j'"-s.»r  ox  AProirnoNMKNT. 


■a 


9      1 

l:    ' 

3 

1- 

5 

1ft 

8 

0 

2 

i 

> 

i;< 

0 

7 

nnil  f'viu  lill  iin  adviiticcd  sfiiixo  of  tliis  hccoiuI  hill,  wlicn  nil  iiiuoiiioiis 
frriilliMii:\ii  foiuul  out  tlu,  ilocliiiie  of  fractions,  —  ii  (loctiiiu^  so  (lillicult 
ami  iiioliviouB  ns  to  lie  rcjcoted  nt  first  sight  by  \U".  very  ])frsor,s  who 
nftoiwMnls  lipciune  its  most  zomIoiis  ndvociitcs?  'I'lii'  phnini'  stands  in 
llio  midst  of  a  nundicr  of  olher.s,  cvi'iy  one  of  which  rchitos  to  States 
in  tlicir  separate  capacity.  Will  not  plain  common  sense  then,  undor- 
stiuiil  il,  like  the  rest  of  its  context,  to  relate  to  States  in  their  separate 
oainicitii'S? 

"lint  if  the  phrase  of  one  for  30,000  is  only  meant  to  give  the  a<j- 
!;ri'L;;iti' of  representatives,  and  not  nt  all  to  inlliienee  llic  ir  apportion- 
imii!  nuioiiii;  the  States,  then  the  one  hundred  and  twenty  lieinu;  once 
fijiind,  in  order  to  apportion  them  we  mnst  recur  to  tiie  former  rule, 
whiili  does  it  iicciirilhig  tn  tin'  iiiniibcrs  of  the  rcs/tcctin'  Sliilr.i :  and  we 
must  t:ilu'  the  iii'iirrat  a»nmon  din'.ior  as  the  ratio  of  distribution,  tiiat 
is  111  say,  that  divisor  which,  applied  to  every  State,  gives  to  them  such 
nuiiiiieis  as,  added  together,  come  nearest  to  l"2(l.  This  nearest  eom- 
nioM  ratio  will  be  found  to  be  •J.S,S.").S,  and  will  distribute  1  ID  of  the  120 
memhers,  leaving  only  a  single  residuary  one.  It  will  be  found,  too, 
Id  place  !tfi.(i4H  fractional  numbers  in  the  eight  northernmost  States, 
:iinl  10,"i,r)iS2  in  the  southernmost.     The  following  table  shows  it:  — 


Ratio  of  28,a'j8.    run  tions. 


'  Vermont      .     . 
New  Ilampshire 
.M:issiieiiuselts 
Kliiiile  Island    . 
('(inneelieut 
New  York    . 
N\'V,'  .lersey 
IVnnsylvania    . 

Iii'lauare 
Miivvland 
\'ii-i;iiiia 
Kriiliiekv 
Nonh  Carolina 
South  Carolina 


lU,s-j;! 

47r>,:)-J7 

(;.s,444 

2;)."..!i41 

;i.v_'.!iir) 
I7ii,ri5(i 

4;i2,.SK0 


2 

4 
l(i 

2 

H 
12 

1) 
15 


27.1S(I 
2(;.:i'.U 
i;!,:,!i!t 
1(),72S 
."..(•77 

(i,i;iii 

(),4(IS 
10 


.'■).-., r,:i8 

1 

2(i.C.S0 

27S..->i:i 

9 

IHJDl 

(!,",( i,r„-iK 

21 

24  .-,40 

CiSJO.-. 

2 

lo.itso 

.r,.i,:.2l 

12 

7,22", 

20(i.2;!(i 

7 

4,2:i0 

70,843 

2 

l;!,127 

90,648 


3,(i:!0,:tl2 


119 


202,2:!0 


10.'-),.'->S2 


202,2;!0 


"Whatever  may  have  been  the  intention,  the  effect  of  rejecting  the 
iii'iiiest  divisor  (which  leaves  but  one  residuary  mendier),  and  adopting 
a  distant  one  (which  leaves  eiuht),is  merely  to  take  a  member  from 
New  York  and  Pennsylvania  each,  and  give  them  to  Vermont  and  Xew 
lliuiipshire.     I5ul  it  will  lu'  said   'This   is  giving  more  than  one  for 


4'2H  ,ii;i'-Ki:i:s()N  on  aim'oiitionmunt.       [ciiai'.  viii. 

Jio.OdO.'  'rnii';  Iml  liiis  it  not,  lii'i'ii  just  siiid,  that  the  one  for  ;iii,(i(i() 
irt  pi'cseiibc'il  only  to  fix  tlie  ii^,!j;rej;:ili',  nuiiibor,  iiiul  that  wu  are  not  to 
iiiiiitl  it  wlii'H  wu  conic  to  apportion  tlieni  amonfj  tlie  States ;  that  for 
this  we  nnist  recur  to  the  former  rule,  which  distril)ute8  thoin  aceoiding 
to  the  nuiiiliers  in  eacli  State?  IJesicles,  doea  not  tlie  hill  itself  appor- 
tion among  seven  of  the  Slates  by  the  ratio  of  27,770,  which  is  much 
more  than  one  for  ;U),00()? 

"  Where  u  phrase  is  snsceptible  of  two  nicanin<;s,  we  ouuht  eerlaiuly 
to  adopt  that  which  will  liriiiii  upon  us  the  fewest  iuconvenieuces.  Let 
ns  weijili  those  resiiltini!;  from  Ixjlli  constructions. 

"  From  that  fiivinj^  to  each  State  a  member  for  every  30,000  in  that 
State,  results  the  sinjiie  inconvenience,  that  there  may  be  lariie  fractious 
unrepresented.  But  it  beiufj;  a  mere,  hazard  on  which  States  this  will 
fall,  hazard  will  equalize  it  in  the  loiifj  rini. 

"  From  the  oilier  results  exactly  the  same  inconvenience.  A  thoiisiuul 
cases  may  l)e  inianined  to  jjrove  it.  Take  one  :  supi)ose  eiiiht  of  tlie 
States  had  4."),i)(IO  inhabitants  each,  and  the  o'.lier  seven -ll, '.»'.•!)  encli, 
that  is  to  say.  each  one  less  tlian  I'ach  of  the  others,  the  aj^irreLjatc 
would  be  (171,',1'j;!,  and  the  nunii)er  of  representatives,  atone  for.'iUJilKl 
of  the  aggregate,  would  be  2l'.  'I'hen,  after  giving  one  meiulier  to  i;k'Ii 
Stale,  distribute  the  si'ven  residiiai-y  iiieiuliers  among  the  seven  !il,:;iK'st 
fractions;  and  tliough  the  dilt'iTence  of  ]K)pui;ili()n  lie  only  an  unit,  llio 
representation  would  be  the  double.  Hi-re  a  single  iiduibitant  the  more 
would  count  as  .'!0, 000.  Nor  is  this  ease  imaginable  only ;  it  will  ri'- 
semble  the  real  one,  whenever  the  fracli(Uis  liai)i)en  to  be  pretty  e(|ii;il 
through  the  whole  Slates.  The  numbers  of  our  census  happen,  by  iii'ii- 
denl,  to  give  the  fractions  all  very  small  or  very  great,  so  as  to  prodiiee 
the  strongest  case  of  inequality  that  could  possibly  have  occurred,  niul 
which  may  never  occur  again.  'l"he  probability  is,  that  the  fraelioiis 
will  generally  descend  gradually  from  ;i'.).'.)',li)  to  1.  The  inconvenieiiee 
then,  of  large  unrepresented  fractious  attends  both  constructions ;  ami, 
while  the  most  obvious  construction  is  liable  to  no  other,  that  of  tbe 
bill  incurs  many  and  grievous  ones. 

!•  ItAITIOSS. 

1st 4.".()no  -2  ir>,()00 

'Jd l.KiHHI  2  ]:.,(«)() 

vM -irtMwu  •_'  i.-i,(iiH) 

4th 4."i,0(l()  2  l.-),0(H) 

f)ih        4."i.()(ta  'J  i.j.ono 

fith 4."),o(i()  2  ir.,()no 

7th 4.-,.(ioo  2  l."i.000 

8th 4:.,(Mi0  2  l.T.OOO 

mh 44.'.ll»!l  1  14,!li)i) 

10th 44,!)!)'J  1  14,i)9i) 


An'KNDlX.J  .IKI'TKIiSON    ON     A  I'l'OKTK  INMKNT.  4li9 

mil 44,!l!l'J  1  M.!l!t!) 

1-Jlll 44,!I!MI  1  ll.il'.ll) 

l.llh 44,!)'.M.t  I  14,!l!l!) 

14lli 44,'.)!)!l  1  I4,!)!li» 

Iflth 44,i)i)!)  1  14,im9 

074,!)!);5 

"1.  If  yoii  permit  the  large  frdction  in  one  State  to  choose  a  repre- 
sentative for  one  of  the  Huiall  fractions  in  anotlicr  State,  yon  tiiice  from 
the  latter  its  election,  which  eonstitntes  real  representation,  anil  Btilisti- 
tutc  a  virtual  representation  of  the  disfranchised  fractions;  and  the 
tendi'iicy  of  the  doctrine  of  virtual  re])resentatiou  has  liecn  too  well 
discussed  and  appreciated  by  reasoning;  and  resistance,  on  a  former 
groat  occasion,  to  need  development  now. 

"•.'.  'I'iic  hill  does  not  say  tliat  it  has  fjiven  the  residuary  representa- 
tives to  the  ijreiitcHt  fnu-tioiin  ;  though,  in  fact,  it  has  done  so.  It  seems 
to  have  avoided  establisliing  that  into  a  rule,  lest  it  miLrht  not  suit  on 
anotlier  occasion.  Perhaps  it  may  he  found  \he  next  time  more  con- 
venient to  distribute  them  (tiiioiifi  the  .siiiiillcr  Sidirs ;  at  another  time 
mniin'j  Ihf  bifijvr  SlaU'x ;  at  other  times  acctirding  to  any  otiicr  crotchet 
wliieh  iniienuity  may  invent,  and  the  combination  of  tiie  daj'  give 
strengtii  to  carry ;  or  they  may  do  it  arbitrarily,  by  open  l)arL;Min  and 
eal)al.  In  short,  this  construction  introduces  into  Congress  a  scranilile 
or  a  vendue  for  tiie  surplus  members.  It  generates  waste  of  time,  hot 
tilood,  and  may  at  some  time,  when  the  passions  are  high,  extend  a  dis- 
agreement between  the  two  houses,  to  tiie  iierpetual  loss  of  tlie  tiling, 
as  liiiiipeus  now  in  Pennsylvania  assembly;  whereas  tlie  otlier  con- 
stniction  reduces  t!ie  apiiortioiiment  always  to  an  arithmetical  opera- 
tion, alioui  which  no  two  men  can  possibly  dilTer. 

"  '.'<.  It  leaves  in  fidl  force  the  violation  of  the  precept  which  declares 
tliat  r(>presentativc8  shall  be  apportinnod  among  the  States  acconling  to 
tlieir  niiiiiliers,  that  is,  by  some  common  ratio. 

'•  \  iewing  tliis  bill  either  as  a  viola/ion  of  tin'  Coiistitntian  or  as  giv- 
ing an  inconvenient  e.rposition  to  ilnvorda,  is  it  a  case  wherein  tlie  Pres- 
ident oiiLrlit  to  interpose  his  negative?     I  tliink  it  is. 

"  I.  The  non-user  of  his  negative  begins  already  to  excite  a  belief 
that  no  President  will  ever  venture  to  use  it;  and,  consequently,  has 
begotten  a  desire  to  raise  up  barriers  in  the  Slate  legislatures  against 
Congress  throwing  off  the  control  of  the  Constitution. 

"  ■-'.  It  can  never  lie  used  more  pleasingly  to  the  public  than  in  the 
protection  of  the  Constitution. 

"3.  No  invasions  of  tlic  Constitution  are  so  fundamentally  danger- 


430 


■VVUnHTKIt's  UI:P((I!T  on    Ari'OirnoNMKNT.    [CIIAI'.  VIII. 


oil!)  an  the  tricks  pliiyi'd  on  tliuir  own  iiiiiiibors,  apportiiiiuiu'iil,  iiml 
oilier  c'irciinistaiicos  respi'ctiiig  tboiimulvcs,  atiil  alt'cctiuj;  their  lei;;il 
quiilificiitioim  to  lei;irtl!ili^  for  the  riiioii. 

"1.  The  inujorities  liy  whicii  this  bill  iuis  heen  carried  (to  wil.  imo 
in  tho  Senate  and  two  in  the  House  of  Uepresentatives)  siiow  iiow  di- 
vided  the  oiMiiions  were  there, 

".').  Tiie  wholi!  of  both  lionaes  admit  the  Constitution  will  bi'ar  tlio 
other  exposition;  whereas  the  minorities  in  l)oth  deny  it  will  bear  that 
of  the  bill. 

"•  I!.  The  iipplieation  of  any  one  ratio  is  intelligible  to  the  ixoiilc.  ami 
will,  tliorefore,  be  approved  ;  whereas  the  complex  operations  of  tliis 
bill  will  never  be  coinpi'ehended  by  tlu'iii ;  and,  tliough  they  may  ao 
quiesue,  they  cannot  approve  what  they  do  not  understand."  ' 


WIUiSTEirS  RKPDirr  to  THK  SKXATK  on  Till':  API'OI!- 
'l'-IONMI',NT  OF  l8;!-2. 
"  This  bill,  like  all  laws  on  the  same  subject,  must  be  rcu;ank'il  as  of 
an  interesting  and  delicate  nature.  It  respects  the  distribution  of  pulit- 
ical  power  amoni;  the  (States  of  the  Union.  It  is  to  deterniiin'  the 
uuinber  of  voices  which,  for  ten  years  to  come,  each  Stale  is  to  posi^iss 
in  the  popular  branch  of  the  Icjiislature.  In  the  opinion  of  the  euni- 
niittee,  there  can  be  few  or  no  questions  which  it  is  more  desiialile 
should  lie  settled  on  just,  f 'ir,  and  satisfactory  priiicipli'S  than  this; 
and,  availing;  themselves  of  the  benefit  of  the  discussion  whicli  the  liill 
hart  already  undei'iione  in  the  Senate,  they  have  given  to  it  a  renewed 
and  anxious  consideration.  'I'lie  result  is,  that,  in  their  opinion,  the 
bill  ought  to  be  amcDded.  Seeing  the  dilliculties  which  lieioiig  to  the 
whole  subject,  they  are  fully  convinced  that  the  bill  has  been  fiaaieil 
and  i)assed  in  the  other  house,  with  the  sincerest  desire  to  oveicniiie 
those  dilliculties,  and  to  enact  a  law  which  slionUl  do  as  nrich  justice  us 
possible  to  all  the  States.  IJut  the  committee  are  constrained  to  say 
that  the  object  ap|)ears  to  them  not  to  have  been  attained.  'I'lie  un- 
equal operation  of  the  bill  on  some  of  the  States,  should  it  becoine  a 
law,  seems  to  the  coininilteo  most  manifest;  and  they  cannot  but  ex- 
press a  loubt,  whether  its  actual  apportionment  of  the  representative 
power  among  the  several  States  can  be  considered  as  coiifonnab''!  to 
the  spirit  of  tlia  Constitution.  The  bill  jiroviiles  that,  from  ami  after 
the  J5d  of  March,  IS;!!),  the  House  of  Uepresentatives  shall  be  composed 
of  members,  elected  agreeably  to  a  ratio  of  one  representative  for  every 

'  Jefferson's  Works,  1st  ed.,  vol.  vii,  p.  594. 


Al'I'KNItlX.]       WKDSTKUS  HKl'OIiTON   AI'r(J.;  "lONMENT. 


431 


foiiy-si'von  tliousaiul  ami  seven  Iniiulrod  porsoim  in  each  Stnte,  cotn- 
piiti'd  acconling  to  tlie  rule  prpHcrilied  by  tlie  C'liiistitiilioii.  Tlui  inldilioii 
of  tlie  seven  hundred  to  the  forty-seven  thonsaiul,  in  the  ooiiipKsition 
of  thin  ratio,  produces  no  etTect  wliatever  in  rc};iird  to  the  eonstitiiliou 
of  the  House.  It  neither  adds  to,  nor  takes  from,  the  nunilier  of  nieui- 
biTS  iissiitned  to  any  State.  Its  only  effect  is  a  reduction  of  tlie  appar- 
eiil  amount  of  the  fractions,  as  they  are  usually  called,  or  residuary 
lui'iulicrs,  after  the  application  of  the  ratio.  l'"or  all  other  purp<jses, 
the  result  is  precisely  the  same  as  if  the  ratio  had  been  47,0()(). 

"As  it  seema  generally  admitted  that  ineipialities  do  exist  in  this 
hill,  iiiid  that  injurious  consequences  will  arise  from  its  operation  which 
it  would  be  desirable  to  avert,  if  any  proper  means  of  averting;  tliein 
willidit  producing  others  ei|ually  injurious  could  be  found,  the  couimit- 
lee  do  not  think  it  necessary  to  go  into  a  full  and  iiarlicular  statement 
(if  llicse  conseipienees.  They  will  content  themselves  with  presenting 
ii  few  examples  only  of  these  results,  and  such  as  they  lind  it  most 
(lilliriilt  to  recoticile  with  justice  and  the  spirit  of  the  Constitution. 

'•  In  exhibiting  these  exami)les,  the  committee  must  necessarily  speak 
of  pinlieular  Slates;  but  it  is  hardly  necessary  to  say,  that  they  speak 
of  them  as  exami)le8  only,  and  with  the  most  perfect  respect,  not  only 
fur  the  States  themselves,  but  for  all  those  who  represent  theui  here. 

••  Although  the  bill  does  not  commence  l>y  fixing  the  whole  number 
of  tlie  proposed  House  of  Ueiiresentatives,  yet  tlie  process  adojited  by 
it  brings  out  tlu^  iimiibi  r  of  two  hundred  and  forty  members.  Of  these 
two  liiiiidred  and  forty  members  forty  are  assigned  to  the  State  of  New 
Yoii;,  that  is  to  say,  precisely  one-sixth  of  the  wliole.  This  assigininiit 
wiiiilil  seem  to  recjuire  that  New  York  shouhl  contain  one-sixth  [lart  of 
'lie  whole  iioptilation  of  the  United  States,  ami  would  be  bound  to  pay 
oih'-sixth  part  of  all  her  <liicct  taxes.  Yet  neither  of  these  is  the  case. 
The  wliole  reprt'sciilalive  ii(>pulation  of  the  I'liitcd  States  is  1  1  ,'.I2'.I,0()."), 
that  of  New  York  is  1 ,1MH, (;•_'.'!,  which  is  less  than  <iiie-sixth  of  the  whole 
by  iiiMily  7(),t)ll().  Of  a  direct  tax  of  two  hundred  and  forty  thousand 
ilnll:n-s.  New  York  would  pay  only  $;iS,iV.IO.  Kill  if,  instead  of  com- 
li:iiiiig  the  niiiiibers  assigned  to  New  Y'ork  with  the  whole  numbers  of 
llie  liiiiise,  we  compare  her  with  other  .States,  the  inequality  is  still  more 
evident  and  striking. 

'•To  the  State  of  N'ermont  the  bill  assigns  five  members.  It  gives, 
tlieiefore,  eight  times  as  many  representatives  to  New  Y'ork  as  to  Ver- 
mont;  but  the  po|puhition  of  New  Y'ork  is  not  equal  to  eight  times  the 
jiopiilation  of  \'ornioiit  by  more  than  three  hundred  thousand.  N'ermont 
has  live  members  only  for  280,(i.')7  persons.     If  the  same  proportion 


482 


WKnSTKU's  UKI'OUT  ()\  AIM'OUTIONMENT.     [ciIAl-.  VIII. 


were  to  be  ap])lic(l  to  New  York,  it  would  ri'diice  tlie  number  of  lior 
members  from  forty  to  thirty-four,  tnakinj;  a  (lilTciencc  more  than  e(|iml 
to  the  whole  rcpreseiitiitioti  of  A'ermont,  niiil  more  than  suflleiciit  to 
ov(  iCDiMf  her  nhiili>  power  in  the  Mouse  of  Iteine.-entiilives. 

"A  (liMproporiion  almost  ci(uilly  blrildu}!  is  nuiiiifeHted,  if  we  e(]in- 
jiare  New  ^'ork  witii  Alubaiun.  Tin'  population  of  Alabama  is  L'iiL',L'(i,s  ; 
for  lliiH,  siie  is  allowed  live  memliers.  'I'iie  ruli'  of  pi'oportioii  wliicli 
jlives  to  her  but  five  members  for  her  number  would  <i;ive  to  New  York 
but  thirty-six  for  her  number.  Yet  New  York  receives  forty.  As 
comi)ared  with  Alabama,  then.  New  York  has  an  excess  of  representa- 
tion eipial  to  foiir-fiftiis  of  the  whole  representation  of  Alabama;  and 
this  excess  itself  will  {live  her,  of  course,  as  iniicli  weii^ht  in  the  llmiso 
as  the  whole  deleijatioii  of  Alabama,  within  a  siiifile  vote.  Can  it  he 
said,  tiien,  that  representatives  Mie  apportioned  to  tiiese  States  di'mril- 
iiitj  III  tlicir  rvtijiprtii'i'  iii'iiiln'i  ■  .' 

"The  ratio  nssiltned  by  tin  ill,  it  will  be  i)ereeived,  h'aves  l:iri;e 
fractions,  so  called,  or  residuary  luiiidiers,  in  several  of  the  small  States, 
to  the  manifest  loss  of  a  part  of  their  jiisl  projiortion  of  representative 
power.  Such  is  the  operation  of  the  ratio  in  this  respect,  that  New 
York,  with  n.  population  less  than  that  of  New  Kn<;land  by  thiity  or 
thirty-live  thousand,  has  yet  two  more  members  than  all  the  New  Kiij,'- 
land  States  ;  and  there  are  seven  States  in  the  I'liion  whose  meinhers 
amount  to  the  number  of  1  l'.">,  beiii'j:  a  clear  mtijority  of  tlie  whole  Iloiihe, 
whose  airt;re};ale  fractious  i\llo;j;etlier  amount  only  to  lifty-three  thou- 
sand; while  \'ermoiit  and  New  .lersoy,  having  tojjether  but  eleven 
members,  have  a  joint  fraction  lif  seventy-five  thousand. 

"  IVunsylvania  by  the  bill  will  have,  as  it  happens,  just  as  many 
members  as  Vermont,  New  Hampshire,  Massachusetts  and  New  .lersey, 
but  her  iiojinlation  is  not  crpial  to  theirs  by  a  hundred  and  thirty  thou- 
sand;  and  the  reason  of  this  advantajje,  derived  to  her  from  the  pro- 
visions of  the  bill,  is,  that  her  fraction,  or  residuum,  is  twelve  thousaiiil 
on!}',  while  theirs  is  one  hundred  and  forty-four. 

"  I>ut  the  subject  is  capable  of  beini;  presented  in  a  more  exact  and 
mathematical  form.  The  House  is  to  consist  of  two  hundred  and  forty 
members.  Now,  the  precise  proportion  of  power,  out  of  the  whole  mass 
represented  by  the  numbers  two  hundred  and  forty,  which  New  ^Ork 
would  be  entitled  to  according  to  her  population,  is  .".H. .')',);  that  is  to 
say,  she  would  be  entitled  to  thirty-eight  members,  and  would  have  a 
residuum,  or  fraction;  and,  even  if  a  member  were  given  her  for  that 
fraction,  she  would  still  Lave  but  thirty-nine;  but  the  bill  gives  her 
forty. 


Al'l'KNDIX.]    WKnSTKIl'H   UEI'OUT  OX  AITOKTIONMKNT. 


4:]S 


"  These  are  a  part,  and  Imt  a  part,  of  tlioHe  results  produced  liy  the 
hill  hi  its  prcseut  form,  which  the  coinniittee  cannot  lirin^  themselves  to 
apiirove.  Wiiile  it  is  not  to  be  deniitd  that,  under  any  rule  of  nppor- 
lioiiiiienl,  some  dcfjrec  of  rehitivc  inef|uality  must  always  exint,  the 
L'uiiiiiiittee  eannot  believe  that  the  Senate  will  Hanction  ine(iuality  jukI 
injustice  to  the  extent  in  which  they  exist  in  this  bill,  if  they  cnn  be 
iivoicicd.  Hut  recollecting  the  opinions  which  had  been  expressed  in 
tin'  discussions  of  the  Senate,  the  committee  have  dilij^ently  soufilil  to 
li:irii  whether  there  was  not  some  other  ninnber  wiiich  mijiht  be  t!d»cii 
f(ir  a  ratio,  the  application  of  which  would  work  out  more  justice  siihI 
(M|i;ality.  In  this  pursuit  the  committee  have  not  been  succcssfid. 
'I'luTe  are,  it  is  true,  other  numbers,  the  adopt'on  of  which  would  relieve 
iiiiuiy  ol'  the  States  which  suffer  under  the  present ;  but  this  relief  would 
111'  (ililained  only  by  shiflinil  the  pressure  on  to  the  other  States,  thus 
(Teiitin;!  new  grounds  of  complaint  in  other  quarters.  The  number 
Iciiiy-four  thousand  Iws  been  jreneral  _,•  spoken  of  as  the  most  accei>table 
!iii)i.-titute  for  forty-seven  thousand  sever,  hundred;  but,  should  this 
111'  :id(i])led,  great  relative  inequality  wordd  fall  on  several  States,  and, 
!Uiioii;j;  theni,  on  some  of  the  new  au.l  ;j;rowini:  States,  whoso  relative 
(liniiroportion,  thus  already  great,  would  be  constantly  iiicrcasing.  The 
cdiiiinittee,  therefore,  are  of  opinior.  that  the  bill  should  be  altered 
ill  tiie  mode  of  apportionment.  They  think  that  the  process  which  be- 
gins by  assuming  a  ratio  shouhl  be  abandoned,  and  that  the  bill  ought 
to  lie  framed  on  the  principle  of  the  amendment,  which  han  been  the 
m.iiii  subject  of  discussion  before  the  Senate.  The  fairness  of  the 
liriiiciple  of  this  amendment,  and  the  general  equity  of  its  results,  eom- 
puieil  with  those  which  How  from  the  other  process,  seem  jilaiii  and  un- 
ilciiiiible.  The  main  (piestiou  has  been,  whether  the  principle  itself  be 
coustitutional;  and  this  question  the  committee  proceeded  to  examine, 
respectfully  asking  of  those  who  have  doubted  its  constitutional  pro- 
|iiiety,  to  deem  the  question  of  so  much  importance  as  to  justify  a 
Becond  rellection. 

"The  words  of  the  Constitution  are,  'representatives  and  direct  taxes 
siuill  be  apportioned  among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  numbers,  which  shall  be 
ilt'terniined  by  adding  to  the  whole  number  of  free  persons,  including 
those  bound  to  service  for  a  term  of  years,  and  excluding  ln<lians,  three- 
lifths  of  all  other  persons.  'I"he  actual  enumeration  shall  be  made 
witliiii  three  years  after  the  first  meeting  of  the  Congress  of  the  I'liited 
'States,  and  within  every  subsequent  term  of  ten  years,  in  such  manner 
as  they  shall  by  law  direct.     The  nundjer  of  representatives  shall  not 


4:54 


WKIJSTKU'S   llKroKT  i  IN   Ari'OllTK  >NMKNT.     [ciIAl'.  VIII. 


exooi'il  one  for  cvory  lliiity  thoiiBiind,  Init  caeli  State  bIuiII  have  at  lujist 
oue  ivpivseutativo.' 

" 'I'liere  would  Hcoin  to  lie  little  dilliculty  \\i  uiidcvstaudiug  these  pro- 
visions. The  terms  used  are  designed,  iloubtlebs,  to  be  received  in  no 
peculiar  or  technical  sense,  but  according  to  their  common  and  po|iulur 
acceptation.  To  aiiportion  is  to  distril)Uto  by  right  measure,  to  set  off 
in  just  parts,  to  assign  in  due  and  proper  proportion.  These  clausis  of 
the  Constitution  respect  not  only  the  portions  of  power,  but  the  portioiw 
of  the  public  burden,  also,  which  should  fall  to  the  several  States;  and 
the  siuiie  language  is  applied  to  both.  Kepresenlatives  are  to  be  ;ip- 
portioMed  among  the  States  according  to  their  respective  inimbers  ;  an^l 
direct  taxes  iire  to  be  ai)i)ortioned  by  the  same  nde.  The  end  ai:n(il:.t 
is,  that  r,'|)resentation  and  taxation  slioiiM  go  luiiid  in  hand;  tli;'t  (mcIi 
State  should  bo  represented  in  the  same  extent  to  which  it  is  iiiaile  siili- 
jecl  to  the  )>!;l)lio  charges  by  direct  taxation,  lint  between  the  appor- 
tionmentof  representatives  and  the  apportionment  of  taxes  there  neces- 
sarily exists  one  essential  dilTerence.  Hepresentation,  foiuided  on 
numlurs,  must  have  some  limit;  and,  being  from  its  nature  a  thing  not 
ca])a''le  ( r  indeliiiite  subdivision,  it  cannot  be  made  precisely  e(|ual.  A 
tax,  indeed,  cannot  always  or  often  be  ap|)ortioned  with  perfect  exact- 
ness ;  as,  in  other  matters  of  account,  there  will  be  fractional  part^  iif 
the  smallest  coins  and  the  smallest  denomination  of  money  of  accoimt, 
yet,  by  the  usual  sulidivisioiis  of  the  coin  and  of  the  denomination  of 
money,  the  appiMlionmeiit  of  taxes  is  ca))alile  cf  being  made  so  exact 
that  the  ineijiiality  liecomes  minute  and  invisible.  lUit  representation 
cannot  be  tluis  divided.  Of  representation,  there  can  lie  nothing  u.-s 
than  one  representative  ;  nor,  liy  our  Constitution,  nu)re  re|)resentat:vi'a 
tlian  one  Utv  every  tiiirly  thousand.  It  is  ([uite  obvious,  Iherefori',  diat 
the  apportionment  of  ri'iiresenlalive  power  can  never  be  preci.-^i^  ;uid 
perfect.  Tliere  must  always  exist  some  degree  of  ine(itndily  Tlmsi' 
who  fiameil  and  those  who  adopted  the  Constitution  were.  i.  eonrsc, 
fully  a('(|nainti'd  willi  this  lU'cessary  ojiei'ation  of  the  jirovision.  In  Ujc 
Senate,  the  States  are  eiitilli'd  to  a  lixed  number  of  senators;  ami, 
therefore,  in  regard  to  their  representation  in  that  body  there  is  no  loii- 
sequenlial  or  incidental  ine(|uality  arising.  Hut,  being  repres'  •I'cd  in 
tlie  House  of  Hepresenlatives  according  to  tlieir  respective  iniinlieis  of 
people,  it  is  unavoidable  that,  in  assigning  to  each  State  its  numluTof 
niembers,  the  exact  proportion  of  each,  out  of  ii  given  number,  cannot 
always  or  often  be  exp  ,:ssed  in  whole  numbers;  that  is  to  say,  it  will 
not  often  be  fcnind  that  there  belongs  to  a  State  exactly  one-tenlli  or 
oue-tweiiticth  or  oue-thirtieth  of  the  whole  House;  and,  therefore,  no 


y^lM'r.N'DlX.]    WEUSTER'S  l!KI*01!T  ON  A1>I'()I!TI()NMKNT. 


4:^." 


'iin:il)i'r  of  rcprcsoiitatives  will  exf.ctly  eorrospoud  with  the  ri^hl  of  siicli 
ttatt',  or  the  precise  share  of  rr prosentatiou  wliich  belongs  to  it,  ac- 
c)nliii^  to  its  population. 

••  The  Constitution,  therefore,  must  be  understood,  not  as  enjoining 
nil  iihsoiute  relative  etpia.'ity,  —  because  that  would  be  demanding  an 
impossibility, —  but  as  reep'iringof  Congress  to  make  the  apportionment 
of  lepi'oseutativos  among  the  several  States  according  to  their  respective 
iiuniiii'is,  CIS  near  us  via;/  hi'.  That  wliich  cannot  be  done  perfectly 
iiuist  be  done  in  a  manner  iis  near  perfection  as  can  be.  If  exactness 
Ciuiiiol,  from  the  nature  of  things,  bo  attained,  then  the  greatest  priic- 
tic:il>le  !i|)pioa('h  to  exactness  ought  to  be  made. 

"Congress  is  not  absolved  from  all  rule,  merely  because  the  ralo  of 
pi'ifict  justice  cannot  bo  applied.  In  such  a  case,  approximation  be- 
I'liini's  a  rule;  it  takes  the  place  of  that  other  rule,  which  would  be 
|iri  fi'iiiliU!,  but  wliich  is  found  iiia)>plical)le,  and  becomes,  itself,  an 
(iliiii;:ilioii  of  bintling  force.  The  nearest  approximation  to  exiiet  truth, 
(ir  cxMi't  riglit,  when  that  exact  truth  or  tliat  exact  riiilit  cannot  ilsi'lf 
lit'  rcMched,  prevails  in  other  cases,  not  as  a  matter  of  discretion,  but 
as  MM  intelligible  and  detinite  rule,  dictated  by  justice,  and  conforming 
ti)  the  coinnion  sense  of  mankind  ;  a  rule  of  no  less  binding  force  in 
c;isi's  to  which  it  is  iipplieable,  and  no  more  to  be  departed  from,  than 
iiiiy  other  rule  or  obligation. 

'•  Thr  committee  understand  the  Constitution  as  they  would  have  iiii- 
ilcislciod  it,  if  it  had  said,  in  so  many  words,  that  representatives  should 
W  apportioned  among  the  States,  according  to  iheir  respe-jlive  numbers, 
(',<  iwar  us  I  Kill  III'.  If  this  bo  not  its  true  meaning,  tli.'ii  it  lias  either 
^'ivrii,  on  this  most  di'licato  and  important  subject,  a  rule  which  is 
alwMvs  iuipnicticable,  or  e!ie  it  has  given  no  rule  at  all ;  because,  if  I  lie 
luK'  III'  that  represi'utalives  shall  be  apportioned  c.r^icfli/  according  to 
niiiiibers,  it  is  impracticable  in  every  case;  and  if,  for  Jiis  reason,  that 
ciuiiiot  bo  the  rule,  then  there  \a  no  rule  whatever,  unless  the  rule  be 
thai  thry  shall  be  apportioned  an  near  as  niin/  hi\ 

"  I'liis  coiislriicliou,  indi'ed,  which  tlu^  committee  ado))',  has  not,  in 
tiirir  knowledge,  been  denied;  and  they  proceed  in  the  <lisciissioii  of 
till'  (|iii's'  ,)n  before  the  Senate,  taking  for  granted  that  such  is  the  true 
aiiil  "''.(eniable  meaning  of  the  Constitution. 

•'  The  next  thing  to  be  observed  is,  that  the  Cons  ti  tut  ion  proscribes  no 
lituliciilar  process  by  which  this  aiiportionment  is  to  In'  wrought  out.  It 
lias  plainly  describeil  the  end  to  be  accoaiplislied,  namely,  the  nearest 
apiiroach  to  relative  e(iuality  of  representation  among  the  States;  and 
nliaii'ver  accomplishca  this  end,  and  nothing  else,  is  the  true  process. 


43() 


M'EIiSTEU'S   |;KI'(>I!T  ON  Ari'()|!TK)NMI-:\T.     [CFIAI".  V:!l. 


In  truth,  if  witliout  niiy  jirocL'ss  wlmtevcr,  wlietlior  eluborulc  ci'  v:\:\\ 
(  oiif^i'css  could  iifici'ivc  tlie  (wiict  jiroiioitioii  of  rcprcxi'iitiitivi?  |ici\v(>r 
rijj;litfully  bi-lon^iug  to  esich  Stnto,  it  would  perfectly  fulfil  its  duly  hy 
conferring  tluit  portion  on  omcIi,  without  reference  to  any  process  \vli:it- 
ever.  It  would  be  enou;j;li,  tliiit  the  proper  end  had  been  attaiiieil. 
And  it  is  to  be  remarked  further,  that,  whether  this  end  be  altaiued 
best  by  one  process  or  by  another,  becomes,  when  each  process  has  hcon 
carried  throuiih,  not  matter  of  opinion,  but  matter  of  matheniatical 
certainty.  If  the  whole  population  of  the  United  States,  the  jjopulation 
of  each  State,  and  the  proiwsed  number  of  the  House  of  Kepresentiilives 
be  all  jrivcn,  then,  lietwecn  two  bills  apportioning;  the  memliers  aiiioug 
the  several  States,  it  can  be  told,  with  al)solute  certainty,  which  bill  as- 
sifjns  to  any  and  every  State  the  nundicr  nearest  to  the  exact  proporlioa 
of  that  State;  in  other  words,  which  of  the  two  bills,  if  ciliier,  .Tjipor- 
tions  the  re|)resematives  according;  to  the  numbers  in  the  States,  respec- 
tively, as  vi'iir  (i.t  min/hi\  If,  therefore,  a  particular  process  of  appor- 
tionment be  adopted,  and  objection  be  made  to  the  injustice  or  inequality 
of  its  result  it  is,  surely,  no  answer  to  such  olijection  to  say  that  tlie  in- 
equality necessarily  results  from  the  nature  of  the  process.  Before  such 
answer  could  avail,  it  would  be  necessary  to  show,  either  that  the  Con- 
stitution iirescribes  such  process,  and  nuil<es  it  necessary,  or  that  tiicro 
is  no  other  mijde  of  proceeding  which  would  pioduce  less  ineipialily  :uiii 
less  injustice.  If  ineipudity  which  nii;i;ht  have  otherwise  bei'u  avoided 
be  ])roduced  by  a  triven  process,  then  that  process  is  a  wronj;  one.  It 
is  not  suited  to  the  case,  and  should  be  rejected. 

"  Nor  do  th(^  committee  perceive  how  it  can  be  nuitter  of  constitu- 
tional jiropriety  or  validity,  or  in  any  way  a  conslilutional  (pieslion. 
wliether  tlie  process  which  nuiy  be  applied  to  the  cat.e  be  simple  or 
compound,  one  proc(>ss  or  numy  processes;  since,  in  the  en<l,  it  may 
always  be  seen  whetlur  tlie  result  lie  that  which  h.as  been  aiiiu'd  at, 
namely,  the  nearest  ])racticable  approach  to  piecise  justice  and  relative 
"quality.  The  committee,  indeed,  are  of  opinion,  in  this  case,  that  the 
simplest  and  most  obvious  way  of  proceediui;  is  also  the  true  and  eon- 
?titulional  way.  To  them,  it  appears,  that,  in  carrying  into  ctTeet  this 
l)artof  the  Constitution,  the  lirst  thing  naturally  to  be  done  is,  to  deciile 
on  the  whole  number  of  which  the  House  is  to  be  conipc.sed  ;  as  when, 
under  the  same  idause  of  the  Constitution,  a  tax  is  to  t)e  apportioned 
among  Ww  Stales,  the  amount  of  the  whole  tax  is,  in  the  first  place,  to 
be  settled. 

"When  the  whole  mnuber  of  the  proposed  IIou.se  is  thus  ascertiiiiu'd 
and  fixed,  it  becomes  the  entire  vepreseutative  power  of  all  the  people 


AI'l'KNDlX.]      \VKnSTi:i:"s   UKrOlIT  ox  ArrORTIONMENT. 


4:'.-i 


ill  till'  I'liiou.  It  is  tlu'U  ;i  very  simple  matter  to  nsccrtain  how  niucli 
111"  this  representative  power  eaeli  State  is  entitled  to  by  its  nuinbera. 
If,  (iH-  example,  the  House  is  to  contain  two  hiiiidred  and  forty  ineni- 
ln  r.-,  then  the  niiiuher  two  hundred  and  forty  expresses  the  representa- 
tive |ii)wcr  of  all  the  States;  and  a  plain  caleulatiou  readily  shows  how 
miicli  of  this  power  l)eloni:s  to  each  State.  Tiiis  portion,  it  is  true,  will 
nut  always,  or  often,  he  expressed  in  wiiole  numbers,  but  it  may  always 
be  pieeisely  exhibited  by  a  deeimal  form  of  expression.  If  the  portion 
of  any  State  be  seldom,  or  never,  one  exact  tenth,  one  exact  fifteenth, 
or  tine  exact  twentieth,  it  will  still  always  be  capable  of  precise  deeimal 
expression,  as  one-tenth  and  two-hundredths,  one-twelfth  and  four-hun- 
lireiltlis,  one  fifteenth  and  six-hundredths,  and  so  on;  and  the  exact 
portion  of  the  State,  bein;^  thus  decimally  exiiressed,  will  always  show, 
to  mathematical  certainty,  what  integral  number  comes  nearest  to  such 
cxtut  portion.  For  example,  in  a  House  consistinfr  of  two  hundred  and 
folly  inendiers,  the  exact  niathemalieal  pro|)orlion  to  which  her  nuinhers 
entitle  the  State  of  New  York  is  ;i.S..'.il  ;  it  is  certain,  therefore,  that 
tliirly-nine  is  the  inte<j;ral  or  whole  mnnber  nearest  to  her  exact  propor- 
tion of  the  representative  power  of  the  I'nion.  Why,  then,  should  she 
not  have  thirty-nine ?  and  why  should  she  iiave  forty?  She  is  lujt  quite 
entitled  to  thirty-nine  ;  that  number  is  something  more  than  her  right, 
lint  allowino;  her  thirty-nine,  from  the  ueci.ssity  of  jjiving  her  whole  num- 
liiTs.  and  because  that  is  the  nearest  whole  number,  is  not  the  Cousti- 
tiilioii  fully  obeyed,  when  she  has  received  the  thirty-ninth  number?  Is 
not  lier  projier  number  of  rejiresentatives  then  ajiportioned  to  her,  as 
nciir  as  may  be?  Anil  is  not  the  Constituliou  disre<iarded  when  the  bill 
piH'M  fiirtlier?  and  fiives  lier  a  rorlieth  nienibei?  For  what  is  such  a 
forliclh  member  o;iven  ?  Xot  for  her  absohiti'  numbirs  ;  for  her  absolute 
nniiiliers  do  not  entitle  her  to  thirty-nine.  Not  for  the  sake  of  appor- 
lioiiiiiu;  lu'r  members  to  her  iiumbiMs,  as  nearas  miiy  be  ;  becMUsf  tliiily- 
nine  is  a  nearer  appoi'tioniiient  of  niembiM's  than  forty-  Hut  it  is  uiven, 
siiy  llie  advocates  of  the  bill,  because  the  jirori'fis  which  has  been  adopted 
jjives  it.  The  answer  is,  no  such  process  is  enjoined  by  the  Constitu- 
liiiii. 

"'I'lie  ease  of  New  York  may  be  couiparetl  or  contrasted  with  that  of 
MisMiiiri.  'i'he  exact  proportion  of  Missouii,  in  a  o;eneral  rejiresenta- 
tion  of  two  hundred  and  forty,  is  two  and  six-tenths;  that  is  to  say,  it 
eoini's  nearer  to  three  members  than  to  two,  yet  it  is  confined  to  two. 
liiUwliy  is  not  Missouri  entitled  to  that  number  of  representatives  which 
eoinis  nearest  to  her  exact  ]iroportion  ?  Is  the  Constitution  fullilled  as 
to  her,  while  that  number  ia  withheld,  and  while  at  the  same  time  in 


488 


WEnSTKRS  REPORT  ON  APPORTIONMENT.    [CHAP.  VIII. 


anollier  State,  not  only  is  that  nearest  number  given,  but  an  aildilioiial 
nieniber  given  also?  Is  it  an  answer  with  Avliich  the  people  of  Missouri 
oii;rlit  to  lie  satisflcil,  wli(>n  it  is  said  that  this  obvions  injustice  is  the 
neei'ssnry  result  of  the  proecss  adopted  by  the  bill?  Jlay  they  not  say 
■with  propriety  that,  since  three  is  the  nearest  whole  number  to  their 
exact  right,  to  that  number  they  arc  entitle<l,  and  the  process  which  de- 
prives them  of  it  must  be  a  wrong  process?  A  similar  coni])arison 
might  be  made  between  New  York  and  Vermont.  'l"he  exact  ])roportiou 
to  which  Vermont  is  entitled,  in  a  representation  of  two  hundred  and 
forty,  is  S.OIO.  Her  nearest  whole  nuuiber,  therefore,  would  be  six. 
Now,  two  things  arc  undenial)ly  true:  first  that  to  take  away  the  for- 
tieth member  from  New  York  would  bring  her  representation  nearer  lo 
her  exact  pro])ortion  than  it  stands  by  lea  "ing  her  that  fortieth  member. 
Secondly,  that  giving  the  member  thus  taken  from  New  York  to  \cr- 
mont  would  Iiring  her  representation  nearer  to  her  exact  right  than  it  is 
by  the  bill.  And  both  these  propositions  are  equally  true  of  a  transfer 
of  the  twenty-eighth  member  assigned  by  the  bill  to  rcnii.sylvauia,  to 
Delaware,  and  of  the  thirteenth  member  assigned  to  Kentucky,  to  Mis- 
souri; in  other  words,  Vermont  has,  by  her  numbers,  more  right  to  six 
Tuembers  than  New  York  has  to  forty.  Delaware,  by  her  numbers,  has 
more  right  to  two  members  than  I'ennsylvMiia  has  to  twenty-eight; 
and  Missouri,  by  her  numbers,  has  more  riglit  to  three  members  than 
Kentucky  has  to  thirteen.  Without  disturbing  the  proposed  number  of 
the  House,  the  mere  changing  of  these  three  members,  from  and  lo  the 
six  States  respectively,  would  bring  the  representation  of  the  whole  six 
nearer  to  their  due  proportion  according  to  their  respective  numlici's 
than  the  bill,  in  its  pi-eseut  form,  makes  it.  In  the  face  of  this  iiulis- 
pulable  truth,  how  can  it  be  saiil  that  the  bill  apportions  members  of 
Congress  among  those  States,  according  to  their  respective  nuuiber,  n.t 
miir  i(n  111(11/  lie' 

'■  The  ]iriuciple  on  which  the  proposed  amendment  is  founded  is  an 
effectual  cotrcclive  for  these  and  a'l  other  equally  great  inequalitii's. 
It  may  be  applied  at  all  times  and  in  all  cases,  and  its  results  will  ahvnys 
111-  the  neaicst  approach  to  ])erfect  justice.  It  is  ecpially  simiilo  ami 
impartial.  As  a  ride  of  ajiportionment,  it  is  little  otlu'r  than  a  tnui- 
script  of  the  words  of  the  Coustilulion,  and  its  results  are  matliematiiiilly 
ct'rl;iiu.  The  Constitution,  as  the  couHuittce  undeistaud  it,  says,  rep- 
resentatives sh;,ll  bo  ai)i)ortione(l  among  the  States,  according  to  tlioir 
respective  numbers  of  people,  as  near  as  may  be.  The  rule  ndoi)ted  hy 
the  ci)mmittee  says,  out  of  the  whole  number  of  the  House,  that  num- 
ber shall  be  appoiiioned  to  each  State  which  come»  nearest  to  its  exact 
right,  according  to  its  uumber  of  people. 


jMMM'.Nmx.]    \vr.iisTi;i;'s  incroiir  on  ati'outionmknt. 


4:59 


"  Wlii'iv  is  tlio  lopiijxiiiiiioy  botui'ou  the  CoiistitnliuM  suiil  llu'  nilo? 
Tho  arijunicnts  against  tiie  rule  spoin  to  nssuine  timt  thci'i'  is  a  lu'ci.'ssity 
of  inslitiitinij  soiiio  process,  adopiiiiji;  sonic  nunilicr  11s  tiic  ratio,  or  as 
tiint  number  of  people  wliicii  each  nii'mlicr  sliail  he  nmierstooil  to  repre- 
sent ;  but  the  committee  see  no  occasion  for  any  other  process  whatever 
tlmn  simply  tiie  ascertainment  of  tli;it  (/iKuitmn  out  of  the  wliole  mass 
iif  tlie  representative  power,  whicii  each  State  may  claim. 

'•  Hut  it  is  said,  that  although  a  State  may  receive  a  number  of  rep- 
resentatives which  is  something  less  than  its  exact  proportion  of  repre- 
sentation, yet  that  it  can  in  no  case  constitutionally  receive  more.  How 
is  this  projiosition  proved?  How  is  it  shown  that  the  Constitution  is 
less  ])erfoctly  fulliUed  by  allowing  a  State  a  small  excess  than  by  sub- 
jecting her  to  a  large  deficiency?  What  the  Constitution  requires,  is 
the  nearest  practicable  approach  to  precise  justice.  'I'lie  rule  i»  a;)prox- 
iination;  and  we  ought  to  approach,  therefore,  on  whichever  side  we 
CMU  approach  nearest. 

"•  Ihit  there  is  still  a  more  conclusive  answer  to  be  given  to  this  sug- 
gestion. The  whole  number  of  representatives  of  whicli  the  House  is  to 
lie  composed  is,  of  necessity,  limited.  This  number,  whatever  it  is,  is 
that  which  is  to  be  ap])ortioned,  and  nothing  else  can  be  apportioned. 
'I'liis  is  the  whole  sum  to  be  distributed.  If,  therefore,  in  making  the 
!ipporlionment,  some  States  receive  less  than  their  just  share,  it  nuist 
iieeessarily  follow  that  some  other  States  have  received  more  than  tlieir 
just  share.  If  there  be  one  State  in  the  I'nion  with  less  than  its  right, 
Home  other  State  has  more  than  its  right,  so  that  the  argument,  what- 
ever be  its  force,  applies  to  the  bill  in  its  present  form  as  strongly  as 
il  can  ever  apjily  to  anj'  bill. 

"  lUit  the  objection  most  usually  urged  against  the  principle  of  the 
propiised  auiendnu'iit  is,  tliat  it  provides  for  the  representation  of  frac- 
tions. Let  this  objection  be  exan.iued  and  considirod.  Let  it  be  as- 
certained, in  the  (irst  jilace,  what  these  fractions,  or  fractional  numbers, 
or  residuary  numbers  really  sire,  which,  it  is  said,  will  be  represented 
should  the  amendment  prevail. 

"A  fraction  is  the  broken  part  of  some  integral  number.  It  is, 
therefore,  a  relative  or  derivative  idea.  It  im])lies  the  previous  exis- 
tence of  some  fixed  number  of  which  it  is  but  a  part  or  remainder.  If 
there  be  no  necessity  for  fixing  or  establishing  such  previous  number, 
then  the  fraction  resulting  from  it  is  itself  not  ntatter  of  necessity  but 
matter  of  clioice  or  accident.  Now,  the  argument  which  considers  the 
plan  ])roposed  in  the  amendment  as  a  representation  of  fractions, 
fliul  therefore  unconstitutional,  assumes  as  its  basis  that,  according  to 


440 


WKU.STKK's  REl'OUT  ON   Al'POHTIONMKNT      [CHAI'.  Vlll. 


tlio  Constitution,  every  member  of  the  House  of  Represcntalivps  ivpic- 
si'uts,  or  ou.iiiit  to  represent,  the  same,  or  nearly  the  same  numlicr  of 
constituents;  tiiat  tiiis  number  is  to  bo  re>;;ar(letl  as  an  integer;  and 
anytiiiiiii  else  than  tliis  is,  tiiercfore,  called  a  fraction  or  residuum,  ami 
cannot  be  entitled  to  a  representative.  Hut  uothiiis;  of  tliis  is  preseiibeil 
by  the  Constitution  of  the  United  .States.  That  Constitution  eonteiii- 
platcs  no  integer  or  any  common  number  for  the  constituents  of  a  nit'iii- 
ber  of  the  House  of  IJi'presentativcs.  It  goes  not  at  all  into  tiit'sc. 
subdivisions  of  the  jjopulatiou  of  the  State.  It  provides  for  the  appor- 
tionment of  representatives  amoug  the  seueml  Stntps,  nceordinu  to  tlieir 
respective  numbers,  mid  sto])S  tiiore.  It  makes  no  pii>vision  fur  tlic; 
represenUition  of  ilistricts,  of  States,  or  for  the  re|)resenlaliou  of  any 
portion  of  the  people  of  a  Stale,  less  than  tiie  whole.  It  snys  mitliini; 
of  ratios  or  of  constituent  numbers.  All  these  tilings  it  leaves  to  Stale 
legislation.  The  rigiit  wliicli  eacli  State  possesses  to  it.-*  own  duo  por- 
tion of  the  representative  [lower  is  a  vStale  rigiit,  strictly;  it  bi^loiigs  to 
the  State,  as  a  State,  and  it  is  to  be  used  and  exercised  as  tiie  Slate 
may  see  (it,  subject  only  to  the  coiistitntional  (|ualilications  of  electors. 
In  fact,  the  States  do  inako,  and  always  liMve  made,  dilTerent  provisions 
for  the  exercise  of  tliis  power.  In  soiue,  a  single  iiieiiiber  is  chosen  fur 
a  certain  delined  district,  in  others  two  or  three  members  are  chosen  fur 
the  same  district,  and  in  some,  again,  as  New  Hampshire,  Khode  Islaml, 
Connecticut,  New  .lersey,  and  Georgia,  the  entire  representation  of  the 
State  is  a  joint,  undivided  representation.  In  these  last  inenlioiieil 
States,  eveiy  member  of  the  House  of  Hepresentatives  has  for  his  con- 
stituents all  the  peojile  of  the  State;  and  all  the  iieople  of  those  Stales 
are  cousc(iuently  rejirosented  in  that  branch  of  Congress.  If  the  hill 
before  the  Senate  sluiuld  jiass  into  a  law,  in  its  present  form,  whatever 
injustice  it  might  do  to  any  of  those  States,  it  would  not  be  correct  to 
Bay  of  them,  nevertheless,  that  any  portion  of  their  people  was  unrep- 
resented. The  well  founded  objection  would  be,  as  to  some  of  them  at 
least,  that  they  were  not  ade'jiiately,  competently,  fairly  re(iresenle  1 ; 
that  they  had  not  as  many  voices  and  as  many  voles  in  the  House  of 
Uepresi'iitatives  as  they  were  entitled  to.  This  would  be  the  objeelion. 
Thei-e  would  be  no  unrepresented  fractions;  but  the  State,  as  a  State, 
as  a  whole,  would  be  deprived  of  some  part  of  its  just  riiihts. 

"  On  the  other  hand,  if  the  bill  should  pass,  as  it  is  now  jiroposed  to 
be  anieiideil,  tlu're  would  be  no  representation  of  fractions  in  any  Slate; 
foi-  a  fraction  supposes  a  division  and  a  ri'iiiaiiidei'.  All  that  conM 
justly  be  said  would  be  that  some  of  these  States,  as  States,  possessed 
a  portion  of  legislative  power,  a  little  larger  than  their  exact  right;  as 


A  I' 


.:::>:x.] 


\VKiiST::i:  s  uicpuirr  ox  aim'ohtionmknt. 


441 


it  iimst  l)C  adinittod  thiit,  should  the  bill  pass  unamended,  thoy  ^vouUl 
|i(>~si'S8  of  that  iiowcr  much  less  than  that  exact  rijjht.  The  same  re- 
ni;iil;.-i  are  suiistantially  true,  if  applied  to  those  States  wliicli  adopt  the 
(lislrict  system,  as  most  of  them  do.  In  ^lissouri,  for  example,  (here 
will  be  no  traction  um-epresented,  should  the  bill  become  a  law  in  its 
present  form  ;  nor  any  member  for  a  fraction,  should  the  amendment 
|)rcv;iil ;  because  the  mode  of  apportionment,  which  assij;ns  to  each 
Sinie  that  number  which  ia  nearest  to  its  exact  right,  applies  no  assumed 
ralins.  makes  no  subdivisions,  and,  of  course,  produces  no  fi'actions. 
Ill  liie  one  case  or  in  the  other,  the  State,  us  a  State,  will  have  some- 
tliiii.;'  more  or  somethiuij;  less  than  its  exact  proportion  (jf  representative 
power;  but  she  will  part  out  this  power  iimouj;  her  own  pc^oj^e,  iu  either 
oust',  in  such  mode  as  she  may  clioosc,  or  exercise  it  altogether  as  an 
onlire  representation  of  the  people  of  tlie  State. 

"  Wlietiier  the  subdivision  of  tlie  representative  power  within  any 
Slate,  if  tluM'e  be  a  sulidivision,  bi'  eipial  or  uni'qual.  or  fairly  or  unfairly 
inaile,  Congress  cannot  ]\Uow,  and  has  no  authority  io  inciiiire.  It  is 
('ii(iii;:li  that  the  State  presents  her  own  representation  on  the  floor  of 
(diiiiiess  in  tlie  mode  she  chooses  to  present  it.  If  a  Slate  were  to  give 
one  ])<)rtiou  of  her  territory  a  representative  for  every  twenty-live  thou- 
sand persons,  and  to  the  rest  a  representative  only  for  every  fifty  thou- 
sand, it  would  be  an  act  of  unjusl  legislation,  doubtless,  but  it  would 
be  wliolly  beyond  redress  by  any  jjower  in  Congress;  because  the  C'on- 
Btiiiition  has  left  all  this  to  the  State  itself.  . 

"  These  considerations,  it  is  thought,  may  show  that  the  t'onstitulion 
has  not,  by  an}'  implication  or  necessary  construction,  enjoined  that 
which  it  certainly  has  not  ordained  in  terms,  viz.,  tliat  every  iMeniber  of 
tin:  House  shall  be  8upi)osed  to  represent  the  same  uuiiiber  of  eoiisiiiu- 
enls;  and  tlu'refore,  that  the  assuuiiition  of  a  ratio,  as  representing  the 
Cdnuiion  iiuuiber  of  constituents,  is  not  called  fen'  by  the  Constitution. 
All  I  hat  Congress  is  at  liberty  to  do,  as  it  would  seem,  is  to  divide  the 
wliolt'  representative  powerof  the  Union  into  twenty-four  parts,  assign- 
ing niic  part  to  each  Slate,  as  near  as  practicable  aecoriling  to  its  right, 
and  having  all  subse(|uent  arrangement  and  all  subdivisions  to  the  State 

itself. 

"  If  the  view  thus  taken  of  the  rights  of  tiie  States  and  the  duties  of 
Congress  be  the  correct  view,  then  the  plan  proposed  in  the  amendment 
is  in  no  just  sense  a  representation  of  fractions,  l^ut  sujipose  it  was 
otherwise;  8U|)|)ose  a  direct  division  were  made  for  allowing  a  rei)re- 
Bentativc  to  every  State,  in  whose  poimlation,  it  being  lirst  divided  by 
a  common  ratio,  there  should  be  found  a  fraction  exceeding  half  tha 


442 


WEDSTKIl's  IIRTOKT  ON  APPOUTIONMENT.     [cHAP.  VIII. 


niiioiintof  that  rntio,  wimt  constitutional  objoction  conld  be  fairly  iiiLied 
as^ainHt  siu-li  a  pi-ovision  ?  J^pt  it  be  always  remembered  that  the  omsi- 
here  supix)Hod  provides  only  for  a  fraction  exceeding  tiie  inoioty  <  f  tlie 
ratio;  for  the  committee  admit  at  once  that  the  representation  of  frac- 
tions, less  than  a  moiety,  is  unconstitntional ;  because,  should  a  lucm- 
ber  be  allowed  to  a  State  for  such  a  fraction,  it  would  be  certain  that 
her  rei)resi,'ntation  would  not  be  so  near  her  exact  right  as  it  was  Ix'foi-e. 
But  the  allowance  of  a  member  for  a  major  fraction  is  a  direct  appiox- 
imation  towards  justice  and  equality.  There  appears  to  the  Commit- 
tee to  be  nothing,  either  in  the  letter  or  in  the  spirit  of  the  Constitution, 
o|)p().sed  to  such  a  mode  of  Apportionment.  On  the  contrary  it  seems 
entirely  consistent  with  the  very  object  which  the  Constitution  contom- 
phitod,  and  well  calculated  to  accomplish  it.  The  argument  commonly 
urged  against  it  is,  that  it  is  necessary  to  apply  some  one  common  di- 
visor, and  to  abide  liy  its  results. 

"  If  by  this  it  be  meant  that  there  must  be  some  common  rule,  or 
common  measure,  applicable,  and  applied  impartially  to  all  the  Stutpg, 
it  is  quite  true.  Ikit,  if  that  which  is  intended  be,  that  the  poiiul.i- 
tiou  of  each  State  must  be  divided  by  a  fixed  ratio,  and  all  resulting 
fractions,  great  or  stiiall,  disregarded,  this  is  but  to  take  for  grantDil 
the  very  thing  in  controversy.  The  question  is,  whether  it  be  uncon- 
stitutional to  make  approximation  to  equality  by  allowing  representiitives 
for  major  fractions.  The  alHrmative  of  this  question  is  indeed  donierl ; 
but  it  is  not  disproved  bysaying  that  we  must  abide  by  the  operation 
of  divisions,  by  an  assumed  ratio,  and  disregard  fractions.  The  (pics- 
tion  still  remains  as  it  was  before  ;  and  it  is  still  to  be  shown  what  there 
is  in  the  Constitution  which  rejects  ajiproximation  as  the  rule  of  appor- 
tionment. Hut  suppose  it  be  necessary  to  find  a  divisor,  and  to  aliide 
its  results.  What  is  a  divisor?  Not  necessarily  a  simple  number.  It 
may  be  composed  of  a  whole  number  and  a  fraction;  it  may  itself  he 
the  result  of  a  previous  process;  it  may  be  anything,  in  short,  wliich 
produces  accurate  and  uniform  division;  whatever  does  this  is  a  com- 
mon rule,  a  common  standard,  or,  if  the  word  be  important,  a  common 
divisor.  The  committee  refer,  on  this  part  of  the  case,  to  some  oliser- 
valions  by  Professor  Dean,  with  a  table,  both  of  which  accompany  this 
report. 

"As  it  is  not  improbalilc  that  opinion  has  been  a  good  deal  intluencH 
on  this  subject  by  what  took  place  on  the  passing  of  the  first  act  niiiking 
an  apportionment  of  representatives  among  the  States,  the  committee 
have  examined  and  considered  that  precedent.  If  it  be  in  point  to  the 
present  ctse,  it  is  certainly  entitled  to  very  great  weight;  but  if  it  ho 


AiricNnix.]  wr.iisTKu's  tikpout  on  Ai'i-oirnoNAniNT. 


-148 


of  (|iK'stioimlile  niiplicalimi,  llio  text  of  the  Constilutioii,  ( v<n  if  il  \.»'re 
ildiilitful,  oouUl  not  111'  explained  liy  a.  doiilitfiil  comnn'ntMiv.  In  tlio 
opinion  of  the  connnitteo,  it  is  only  necessary  tliat  what  was  said  on 
tiiat  oceasion  shonid  lie  nnderstood  in  oonneetion  witii  tlio  snl)jeel-niat- 
ler  tlien  under  consiileration ;  and  in  order  to  see  wliat  that  siihjeet- 
iiwlter  really  was,  the  committee  think  it  necessary  to  state,  slioitly, 
tin;  ease. 

"  The  two  Houses  of  Congress  passed  a  liill,  after  the  first  ennmera- 
ticiM  of  the  people,  providing;  for  a  House  of  liepresentatives  which 
shimld  coiisistof  one  hundred  and  twenty  nieniliers.  The  hill  expressed 
no  rule  or  principle  by  which  these  members  were  assi^jned  to  the  sev- 
eral Stales.  It  merely  said,  that  New  Hampshire  should  have;  five 
ni'.'ii.liers,  Massachusetts  ten,  and  so  on  ;  jioinj^  tlirouiih  all  the  States, 
and  a-signinjj;  the  whole  nnndierof  one  hundred  and  twenty.  Now,  by 
tlic  census,  then  recently  taken,  it  appears  that  the  whole  representative 
lidpiilation  of  the  I'niltMl  Slates  was  !!,C)1 '),'.»L't» ;  and  it  was  evidently 
llip  wish  of  Congress  lo  make  the  House  as  numerous  as  the  Constitu- 
tidii  would  allow.  Hut  the  Constitiilion  lias  said  that  there  should  not 
he  iiiore  than  one  niemlier  for  every  thirty  thousand  persons.  This 
|iioliil)ition  was,  of  course,  to  be  obeyed  ;  but  did  the  Constitution  mean 
tliiU  no  States  should  have  more  than  one  mcinlier  for  every  thirty  thous- 
aiiil  p  'I•.^l)a■^?  or  did  it  only  mean  that  the  whole  House,  as  compared 
with  the  whole  jjopulation  of  the  Inited  States,  should  not  contain  more 
than  one  mendier  for  every  thirty  thousand  persons?  If  this  last  were 
the  true  construction  then  it  was  wrong;  because  so  many  members 
could  not  be  assigned  to  the  States  without  giviui;  to  some  of  thein  more 
iiieiiibers  than  one  for  every  thirty  thousand.  In  fact,  the  bill  did  pro- 
pose to  do  this  in  resiard  to  several  States. 

"  President  Wasliiii<iton  adopted  that  construction  of  the  (^)n9titution 
wliicli  ai)|)lied  its  prohibition  to  each  State  individually.  He  thonjrht 
tliai  no  State  could,  constitutionally,  receive  more  than  one  member  for 
every  thirty  thousand  of  her  own  population.  On  this,  therefore,  his 
iii;iin  objection  to  the  bill  was  founded.  That  objection  he  states  in 
these  words  :  — 

"'The  Constitution  has  also  ])rovided  that  the  number  of  represen- 
tatives shall  not  exceed  one  for  every  thirty  thousand  ;  which  restriction 
is,  by  the  context,  and  by  fair  and  obvious  construction,  to  be  applied 
to  thi;  separate  and  respective  nundiers  of  the  States;  and  the  bill  has 
alldted  to  eiilht  of  the  Slates  more  than  one  for  every  thirty  thousand.' 

"It  is  now  necessary  to  see  what  there  was  further  objectionable  in 
this  bill.    The  number  of  one  hundred  and  twelve  members  was  all  that 


441 


\vi:ii.sTi:i;"s  uin-our  on  Ari'oUTioNMKNT.    [imiaiv 


Vill. 


(•(KiU;  111'  (liv'uK'il  ainonj;  tlio  Slalt'tt  witlioiit  jj;iviiif;  to  some  of  tliciii  more 
tlr.ii  (iu(!  ii'.i'iiilicr  for  lliirty  lliDU.-aiid  iiilial)ilanls.  Tlicicfoiv,  liavin;; 
allo'.ti  l  llint^f  (iiic  liiiiuli'cd  and  twclvi-,  Uiciv  still  iviiiaiiii'd  oiglit  of  llm 
OIK'  liiindifd  and  Iwi'Mly  to  b(!  assi<fiu(l ;  and  tlii'sc  I'i^ht  the  liiil  assitrmvl 
to  the  Slates  liavini^  the  largest  fractions.  .Sonic  of  these  fractions  weii' 
larfi'c,  and  some  were  small.  No  rejjard  was  piiid  to  fractions  over  a 
moiety  of  the  ratio,  any  nu)re  than  to  fracticjns  nndcr  it.  'I'liere,  was  no 
rule  laid  down,  staling;  what  fractions  shonld  entitle  the  States,  lowlioin 
they  mi.ilit  hai)[)en  t(j  fall,  or  in  whose  population  tiny  nii^hl  happen  to 
fall,  or  in  whose  population  they  niijiht  happen  to  he  found,  to  a  re|iii- 
seiitalive  therefor.  The  assiii;nmcnt  was  not  made  on  the  princii  ■  ihat 
each  .Stale  should  have  a  incmlicr  for  a  fraction  "greater  than  halt'  the 
ratio;  or  that  all  the  States  should  have  a  member  for  a  fraction,  ia  mII 
cases  where  the  allowance  of  f.ucli  meudier  would  hrinir  her  representa- 
tion nearer  to  its  exact  proportion  than  its  disallowance.  There  was  nn 
connnon  measure  or  common  rule  adopted,  liut  the  assii;unu'nt  was 
matter  of  arbitrary  discretion.  A  mcuibrr  was  allowctl  to  .New  lluiii|i- 
shirc  for  exami)le,  for  a  fraction  of  less  than  one  half  the  ratio,  thus 
placing  her  repiesentalion  further  from  her  exact  proportion  than  il  was 
without  such  adililional  memlier;  while  a  nu'iidjcr  was  refused  to  (ieor- 
j;ia  whose  cas(^  closely  resembled  that  of  Xew  Hampshire,  both  having 
what  were  thouiihl  lai'ue  fractions,  but  botli  still  under  a  moiety  of  the 
ratio,  ami  distinguished  from  each  other  only  by  a  very  slisiht  difference 
of  absoluti'  numbers.  'I'he  conuuiltee  have  already  fully  expi'essed 
their  opinion  on  such  a  mode  of  apportionment. 

"  In  regard  to  this  character  of  the  bill.  President  U'asliington  said: 
'The  Constitution  has  prescribed  that  leprcscntatia's  sliall  be-  appor- 
tioned among  the  several  States  according  to  their  respective  nuniber.s; 
and  there  is  no  one  pi'oi)ortion,  m-  divisor,  which,  apjilied  to  the  respi>c- 
live  nund)ers  of  the  States,  will  yield  tlic;  numbi'r  and  allotment  of 
representatives  proposed  by  the  bill.' 

•'This  was  all  undoubtedly  true,  and  was,  in  the  judgment  of  llie 
connniltee,  a  di'cisive  objection  against  the  bill.  It  is  nevertlu'less  to 
be  observed,  that  the  other  objection  coiu|)letely  covered  the  whole 
ground.  'I'hcre  could,  in  that  bill,  be  no  allowance  for  a  fraction,  gii'at 
or  small ;  because  t'ongress  had  taken  for  the  ratio  the  lowest  nuiiilier 
allowed  by  the  Constitution,  vi/..,  thirty  thousand.  AVhatever  fraction 
11  State  might  have  less  than  that  ratio,  no  niendit  r  could  be  allowed  for 
it.  It  is  scarcely  necessary  to  observe  that  no  such  objection  applies 
to  the  amendment  now  proposed.  No  State,  should  the  amenduuMit 
prevail,  will  have  a  greater  number  of  members  than  one  for  every  thirty 


AI'IMAhlX.]      WKIiSTKU's  i:r.roi;T  ox  ArPniJTrnXMENT. 


445 


lliiiii>!;ml ;  nor  is  it  likely  tliiit  the  olijcction  will  ever  n;;!ii"  of'ur.  Tlic 
wliolc  I'oici!  of  till'  i)ri'f(Ml(Mif,  wluitrviT  it  lio,  in  its  npplicatioii  lo  tlio 
pii'si'iit  cMsc,  i-i  (Irawii  from  the  otlu'i'  olijoctioii.  And  wliut  i.-i  tin;  true 
iin|iiii't  of  tliiit  objection?  Docs  it  niciiii  niiytliinf;  more  tliiin  that  the 
!i|i|"irti(inmcnt  was  nc^t  miiilc  on  a  common  rule  or  principle,  applicable 
aiul  Miiplied  alike  to  all  the  Stales? 

••  I'resident  '\S':ishin<;ton'rt  words  are,  ' 'I'horc  is  no  one  proportion  or 
liivisoi',  which,  applied  to  the  respective  nnnibers  of  the  .Stat(  s,  will 
yiiKI  the  nundier  and  allotment  of  re])reHentativi's  proposed  by  the 
hill.' 

'•  If,  then,  he  could  have  found  a  common  proportion,  it  would  have 
rfiiiiived  this  olijedion.  lie  required  a  jn'oporlion,  or  divisor.  These 
words  he  evidently  uses  as  explanatory  of  each  other.  He  meant  by 
ilin'snr,  therefoii',  no  more  than  by  proportinn.  AVliat  he  po,iL;ht  was, 
some  common  and  crpiul  rule  by  which  the  allottmeut  hail  lieen  made 
uaiuni^  the  several  Stall's  ;  he  did  not  lind  such  common  rule;  and  on 
that  urouud  he  IhoU'zht  the  bid  objectionable. 

"  In  the  ojjinion  of  the  connnittec,  \u<  such  objection  applies  to  the 
uau'iidun'nt  reconuni'uded  by  them.  That  amendment  {lives  a  rule, 
|iliuM,  simple,  just,  uniform,  and  of  universal  ap[ilicalion.  'I'he  ride 
li:is  l)e('U  frequently  staled.  It  may  be  clearly  expressed  in  either  of 
two  ways.  T,et  the  rule  be,  that  the  whole  luindier  of  the  proposed 
House  shall  be  apportioned  among  the  several  States  according  to  their 
respective  nnnd)ers,  giving  to  each  State  that  number  of  mendiers  whicli 
comes  nearest  to  her  exact  mathematical  part,  or  jjrojiortion  ;  or,  let 
till!  rule  be,  that  the  population  of  each  State  shidl  lie  divided  by  a 
coiiunon  divisor,  and  that,  in  addition  to  the  number  of  nu'inbers  re- 
sulling  fiom  such  division,  a  meudier  shall  be  allowed  to  each  State 
ttliose  fraction  exceeds  a  moiety  of  the  divisor. 

•'  I'.ilher  of  these  is,  it  seems  to  the  eouiudttce,  a  fair  and  ju<t  rule, 
capalile  of  uniform  application,  and  operating  with  enlire  imiiarlialitj'. 
I'lieie  is  no  want  of  a  eonniion  proportion  or  a  connnon  divisor;  there 
is  nothing  left  to  arbitrary  discretion.  If  the  rule,  in  cither  of  these 
forms,  be  adopted,  it  can  never  be  doublful  how  every  inendier  of  any 
liroposed  number  for  a  House  of  Representatives  ought  lo  be  assigned. 
Nothing  will  be  left  in  the  discretion  of  Congress;  the  right  of  each 
State  will  be  a  nuUheinatical  right,  easily  ascertained,  about  which  there 
can  lie  neither  doubt  nor  dilllcully  ;  and,  in  the  application  of  the  rule, 
there  will  be  no  room  for  preference,  partiality,  or  injustice.  In  any 
case,  ill  all  time  to  come  it  will  do  all  that  human  means  can  do,  to 
allot  to  every  State  in  the  Tnion  its  proper  and  just  proportion  of  rep- 


440 


WKHSTKll's   lli;i'll!lT  mn  AIM'OHTtONMENT.    [('IIAI'.  VIII. 


ri'si'iitutive  powur.  And  it  in  bicaiiso  of  tlii^,  its  ciipiibility  (if  CDiiHiiuit 
upplieation,  i\a  well  an  because  of  its  iin|)iii'tiiilily  and  jiiMtii'c,  tliat  llio 
coniniittcc  nro  earnt-st  in  recoinrncndiuL;  its  iidoption  tu  ('()ii;iiis(s.  If  it 
siiuil  be  adopted,  they  believo  it  « ill  i-finovo  a  caiiso  of  uneasiiichs  ami 
dissatisfaction  rccuri-iiii;,  or  liabb^  to  rt'cnr,  wiiii  every  new  census,  luni 
pbico  the  rirrjits  of  tlie  States,  in  this  respect,  on  u  fixed  basis,  of  wliioli 
none  ciui  with  reason  complain.  Jt  is  true,  tii.-.i  there  may  bo,  smno 
numbers  assumed  for  the  composition  of  the  House  of  Uepreseiitatives, 
to  wLidi,  if  tlie  rule  were  applied,  the  result  inijilit  give  a  member  to 
the  House  more  than  was  pr(i|)osed.  Hut  it  will  be  alw.iys  easy  to 
correct  this,  by  altering  tiie  proposed  number  by  addin<j;  one  to  it,  or 
taking  one  from  it;  so  that  this  can  be  considered  no  objection  to  tim 
rule. 

"•The  committee,  in  conclusion,  cannot  admit  that  it  is  siillleieiit 
reason  for  rejecting  this  mode  of  apportionment,  that  a  different  process 
has  heretofore  prevailed.  The  truth  is,  the  errors  and  ine(iualities  of 
that  process  were  at  first  not  obvious  and  startling,  lint  they  have 
gone  on  increasing  ;  they  are  greatly  augmented  and  accunuilated  every 
new  census ;  and  it  is  of  the  very  nature  of  the  process  itself  that  its 
unjust  results  must  grow  greater  and  greater  in  proi)ortiou  us  the  pop- 
ulation of  the  country  enlarges.  What  was  objectionable,  thi)iiL!h 
tolerable  yesterday,  becomes  intolerable  to-morrow.  A  change,  tlie 
committee  are  persuaded,  nuist  come,  or  the  whole  just  balance  and 
proportion  of  representative  power  among  the  States  will  'le  disturbed 
and  broken  up." " 


^  Story  on  tl)i>  Coiistitution.  nth  eil., 
vol.  i,  pp.  4!)n,  tiVi.  Si'i'  S(!nal(!  Docu- 
ments, 2M  Coug.,  1st  Sesbiou,  vol.  ii, 


No.  93;    ililil.,  No.  9t;  il)i(l.,  vol.  ill, 
No.  12G;  ibid.,  vol.  iv.  No.  403. 


CHAPTER  IX. 

VACA>X'IES   IN  TIIK   IIOISK   OK   KKl'UKSENTATIVES  AND 
liJiSlUNATlONS   FROM    l.ONUUESS. 


^  70.    Vitcanoics  in  tlio  lloiiso  of  Koiircsciitatives. 

Tiir,  next  clause  is  :  — 

"  When  Viicaucies  happen  in  the  Representation  from  any  State,  thu 
Kxeenlive  Anlliority  thereof  shall  issue  Writs  of  Election  to  fill  suci 
Viu'aiieies."  ' 

'I'his  WHS  inserted  by  the  committee  of  detail  and  adopted  unini- 
nioiisly  npon  tlie  considei-ation  of  tlieir  report.^  '•Tiie  jiropriety  of 
aiiiiptiiit,''  this  idiiuse  does  not  seem  to  have  furnislii'd  anj'  mutter 
of  (liscus-;ion,  either  in  or  out  of  tlie  convention.  It  was  ohvious 
tiiiil  tiie  power  ontrlit  to  lest  somewliere ;  and  must  be  exereised 
either  by  tile  State  or  national  fjovernnient,  or  by  some  department 
tliereol'.  Tiie  fi'iends  of  Stite  pt)wers  would  naturally  rest  satis- 
tiiil  wiih  leaviiiLf  it  witii  tlie  State  exeeutive  ;  and  tiie  friends  of 
till'  national  j^overnment  would  ae(|uiesee  in  that  arranj.fement,  if 
Dtlier  eoiistitutional  provisions  existed  suilleient  to  preserve  its 
due  exeeution.  'i'lie  i)rovision,  as  it  stands,  has  tlie  strong  rec- 
oniinendation  of  pul)lie  convenieuee,  and  facile  adaptation  to  the 
liaiticular  local  circumstances  of  each  State.  An}'  general  regu- 
Lilinn  woidd  liuve  workt^d  witli  some  ineijuality."  ^ 

All  interesting  question  arose  in  l.SoT.  Tiie  law  of  .Mississippi 
iixed  tlie  tinn;  for  the  election  of  representatives  in  Novemlier. 
Tiie  President  having  called  a  special  session  of  Congress  to  nujet 
ill  Seiitemlier,  the  governor  of  jNIissis.sippi.  on  the  18tli  of  .June, 
issued  writs  f(U'  an  election  in  .Inly  for  two  representatives  to 
Congress  to  fill  the  vacancies  caused  by  the  expiration  of  the  terms 

§70.  1  Arlicl.  I,  Soction  2.  ••>  Story  on    tho    Constitution,    5th 

^  XtiKlisoii  r  .pors,  Klliot's  Debutes,       ed.,  §  685,  pp.  495-4"J9. 
2il.  '■(!.,  vol.  V,  p;).  377,  3'J5. 

447 


448 


VACANCIES    AND    UKSIGNATIONS.  [CIIAP.  IX. 


of  the  members  of  the  preceding  TTouso  until  supei-seded  liy  il 


lose 


to  bo  elected  at  tlie  next  rcLruhir  election  in  Ni 


iber 


At  til 


.July  election,   (iohlson  and  Claibonie  were  elected  a'wl  cl 
ti 


10  seats. 


Tl 


leir  claim  w 


as  I'et'erred  to  a  eoniniitl  je.  of 


wliicli 


Andi 


■c\v 


IJucl 


lanau  was  I'nairnia 


n,  wiu)  i-epoi'ti'd  in  favor  of  tiicir 


riu;bt  to  scats  for 


tli< 


ill  t. 


riic  report  s:iid  :   '  The  C 


oiisti- 


tiition  authoiizcs  tiie  executive  power  of  tlie  States  respectively 
to  order  tiic  tilling  of  all  vacancies  wliieh  have  actually  lKi])peiieii, 
in  the  mode  therein  pointed  out,  no  matter  how  the  vacancy  niuv 
liave  hi[ipcned.  whether  by  dcatli.  resignation,  or  cxpiratioi^  of 
tiie  tcnri  of  menilii'i's  previous  to  the  elcrlion  of  their  successor),.'' 
In  till!  del.ate,  John  (|)uiiiry  Adams  slid  lie  lielieved,  in  rclilioii  to 
oflices,  that  every  one  hajipeiis  to  lie  vacant  wliicli  is. not  full; 
I,  was  the  lueauin'T  and  .sense  of  tiie  ("oiisli- 


and  that,  lie  belicvei 
tution,  whether  tlie  vaeaiic 


course 


of 


even 


ts,  expiration 


y  occurred  from  casualty,  the  regiil; 
of  term,  or  other  cause.     The  claii 


ir 


ants  were  admitted  to  their  scats.      In  November  following,  I'reii- 
tiss  and  Wood  were  elected  for  tlie  same  term.     At  tlie  Deceiiilicr 


tlie   resolution   deelari 


(ihols(ni  and  Claiborne  elected 


injT 


was  rescinded,  Init  a  rc^soliilion  was  also  adopted,  by  tlie  cast 
vote  of  .Siieakcr  .lames  K.  J'olk,  tliat  I'rentiss  and  Wood  wcie  not 


■mlii 


Wh 


Coi 


iLrress  sets 


■<idc 


election  without  scatr 


ing  the  (;oiitest:int.  a  vacancy  happens  within   the  meiining  of  tin 
Constitution.'"' 

Vacancies  may  also  happen  by  death,  expulsion,  or  resignation 
The  proceedings  upon   vacancies   by  death  need  no  ex])laiiatioi 


levo 


nd  the  laiiLrnii 


tlie  ( 


SeqlU'II 

order. 


iiy 


considerci 


onsiilutioii. 
1 


K 


xniilsions  \vi 


11 


suli- 


icancies  liy  resignation  come    next   in 


S71 


K*>si!;iiati<)iis  from  ('onifi'ess. 


A  memlier  of  neither  house   of   I'arliament  can  resign  his  scut. 
Death,  an  act  of  Parliament,  and  a  coiiviclioii  of  an  offense  which 


■•  Minority  roport  in  IScll's  c(i8i\ 
jirc'sciiti'd  liy  ISoiitUor  (ifori!o  F.  Hour 
of  Mas.s!K!liuH<'tls  ariil  nil()|it('(l  by 
the  Sciiiiti- ;  Tiift.'s  Soiialc  Kli'cllcpri 
Cases,   conlluuccl  tiy  I'lirlicr,  pp.  ;i'2- 


;13.     Sen  al.so  1  liart,  J).  !),  .Tiiil  i'?i'V«, 
§77. 

'>  In  re  Tho  lli'pivsciitative  Vacaiicy, 
ir>  K,  I.,  cat;  cf.  In  rr  Tlin  Cont^n-s- 
.slDiialKlcction,  1.5  K.  I.,  G'J-t. 


§'••1 


liKSKiNATlONS    KKO.M    CONGUKS-i. 


449 


opoiMtes  as  a  corniptiDn  of  tlie  lilofxl  are  tlic  only  means  liy  ^^lli^ll 
tlio  seat  of  a  lucnibor  of  tlic  House  of  Lords  can  be  vacated. 

A  luendiei'  of  the  House  of  (  niiuiioiis  has  no  junver  to  resij^ru. 
Uy  .sUitute,  however,  a  seat  is  vacated  l)y  tlie  aceeiitance  of  civil 
ollice.'  It  is  the  eustoni,  eou.seiiuently,  for  a  member  of  either 
]iarty  who  wishes  to  retire  to  apply  to  the  miuistiy  for  tlie  ap- 
pdintnieiit  to  an  olliee  with  nominal  emoluments,  the  stewaid- 
ffliiji  of  the  Chiltern  Hundreds,  'vhose  duty  formerly  was  to  rc- 
sliaiii  the  robluMS  in  tin.'  beech-woods  on  the  Chiltern  Hills  va 
riiiikiiii;hamshire.  ( )n  his  receipt  of  this,  his  seat  is  vacated  bv 
(iprration  of  law.  'i'iie  a|)[)ointment  is  not,  however,  a  matter  of 
(iiiiisc,  but  lies  in  ti.e  discretion  of  the  ministry;  and  the  applica- 
tiiiii  is  I'efused  whenever  it  is  considered  proper  to  punish  a  mem- 
hi  r  by  (jxpulsion.- 

.\  different  rule  prevails  in  the  parliamentary  law  of  the  T'lutcd 
States.  A  ukuuIk  r  of  either  house  of  Consiress  niav  rcsitrn  his 
M  It  at  any  time  by  a  letter  addressed  to  the  governor  of  tlie  Sti-tc 
wliich  lie  represents.-'  Neither  tlie  State  executive  ■*  nor  the  bouse  ■' 
fiiiMi  whi(_Oi  he  retires  has  the  right  to  refuse  to  accept  iiis  resig- 
iKitien  even  though  proceedings  for  his  expulsion  .ii'e  pending.'' 
'I'lie  lesigTiation  should  be  addressed  to  the  State  rxeciitivc.'      It 


S  71.  '4  Anno,  r.  H;  (j  AniiP,  o.  7. 

-  Tho  rcfiLsiil  ill  1H12  to  a  nicmlior. 
aK.iiii^l  wlioin  diiirj^i's  of  I'oi'i'iipl  ('(jii- 
iliK'l  in  «n  i>l(>('tii>n  wci-o  pendiuH,  "'Viis 
siiui  lo  lie  iiMpri'ci'dcnIcd.  (Cooloy's 
Hole  lo  niiu'kKlone,  vol.  i,  p.  lH).) 

■'  Tli(>  i-ijjhl  of  II  Keiiiilnr  to  resign  is 
ri'i(ij,'iiiziMl  in  till' Cdnstilutioii,  .Vrticli' 
1,  Si'i'ijon  H.  Tho  ri^'lil  of  ii  ri'prescn- 
tijlivo  to  resign  waasctllcci  in  William 
Piiickiioy's  Case  in  171)1.  IJiiilon's 
AliiiilKiiifint,  vol.  i,  pp.  ,'128-;t;i0.  See 
also  McCrary  on  Jileclioiis,  2it  ed., 
§(100;  Bledsoe's  Case,  Tuft's  Senate 
El"i'tiou  Cases,  oontimied  by  Fiirlier, 
p.  "3;  H.  c.  CI.  &  Hall,  Kfill ;  Mercers 
Ciise,  CI.  A  Hall,  II.  M  ;  Edwards'  Case, 
Ibid.,  p.  tfi. 

♦  ISIeilsoo's  Case,  Taffs  S-nate  Klec- 
ticm  Casi's,  eontiniieij  hy  I'lirher,  p. 
7'.';  Dixous  Case,  ibid.,  p.  l:i. 


"  Mereer'8  Case,  CI.  A  Hall,  p.  14  ;  Kd- 
ward.s'CaK),  ibid,,  p.  (iO  ;  Omj^ressioiial 
Cilobe,  2.1  Sesidon,  4;lBt  Congress,  p. 
1547. 

'  rieo  iratteson's  Case  in  llie  Tliiri.v- 
nflh  Cong! "^s,  1st,  .Session,  House  Ko- 
ports,  No.  179;  MeCraryon  Kleetii'iis, 
:id  ed.,  §  (iOO;  and  aiitliorilies  I'iti'd 
/tiipra.  .Tilly  21,  iscfi,  notwillislanding 
his  letter  of  resignation  aikli'essed  ti> 
the  govoriior  of  his  Stati'.  of  which  he 
had  noiilled  the  Ilon-e,  Lovell  II. 
ISoiisseaii  of  Ki'nl  iici>.,  was  repri- 
manded liy  the  Spi'aUer  I'lir  his  ri«ig- 
iiation,  in  pursiiani-e  of  n  reBobilion 
passed  belore,  on  account  of  an  as- 
sault made  by  him  upon  a  fellow 
member,  Josiah  15.  CTriniiell  of  Iowa, 
(Congressional  Globe,  1st  Session, 
H7thCoiig.,  Tart  V,  pp.  41)0'.)  4017.] 

'  Mi'Crary  on  Eli'clions,  lid  ed..  J  Diio. 


450 


llKSlfiN'ATIDNS    TllOM    CONOi;  KSS. 


[CIIAI'.  IX. 


is  ncitlicr  n(>ct'HSiirv  nor  proper  to  adthvss  it  to  tin;  lloiiso  or  Sen- 
ati!.'*  It  is  t'ustoiniiry  for  a  senator  or  rcprcjscMitativo  to  addrus* 
liis  resignation  to  his  {governor,  and  also  to  address  a  letter  to  tliu 
presi<liiig  oflfioer  of  the  house  from  which  he  resigns,  iiotifying 
him  and  tlu;  house  of  the  fact  of  the  resignation.^  Such  a  coin- 
municration  is  considered  by  the  liouse  as  sufficient  evidence  of 
the  resignation '" ;  and  until  written  notice  is  received  from  cither 
the  member  or  the  governor,  the  member's  name  remains  upon 
the  roU.'i  It  has  been  said  that  a  resignation  cannot  be  with- 
drawn.'^ 

'I'lio  resignation  of  a  member  of  either  house  maylx!  jn-ospective, 
and  t:il<e  effect  ujjou  a  i'lture  daw  when,  if  the  State  law  jieiniits, 
the  vacancy  may  be  filled  by  election  during  the  meantime.''' 

Whether  a  s(!nator  can  resign  his  scat  l)efore  the  commencennMit 
of  tlie  term  for  which  he  was  elected  has  been  considered  doul>t- 
ful. 


'  M-Cnu-y  (Ml  El.'clions,  3(1  cd.,  §R0O 

9  TM.l.,  §  .T27. 

1^  .lounml,  2(1  Session,  4lBt  Con- 
gresH,  J).  ,173. 

"  llcpoi-l  \o. '2r>70,  House  .ludieiary 
Coniiiiittee,  2U  So.shiou.'lSLli  Cougreas. 


1-  Opinions  of  Justiees,  70  Jliiiiio, 
588,  r,!)7. 

'■'  .\ii'hibal(l  Dixoii'h  Cnso,  'I'iirt's 
Si'iuili!  Kli'cliou  CasoB,  coutiuiieii  by 
Furber,  p.  13. 


CHAPTER   X. 

SPEAKER   AND   OTHER   OFFUEKS   OF  THE   HOUSE   OF 
K  EI'KEiSEXTATI  VES. 


S?  7-.    The  Spoak^M- of  <lie  House. 

'I'll I',  power  to  clifxisc  its  pri'sidiiin;'  ami  otlicr  oilioors  has  hccii 
Cdiisidi'icd  an  attrihiitc  t'sseutial  to  tin;  iiiilcpi'inlunc'e  of  evfiy 
jin|uil:ir  assembly.  Tlii!  forinei.  Iiy  his  power  to  ]ireserve  order,  to 
|)Ut  ihe  r[uestiiiii,  ami  in  Miiy-land  and  the  I'nited  States  to  deter- 
mine w 
till'  eontidl  of  tlu'  latter  the  liouse  is  unahle  to  see   that  its 


ho  shall  speak,  can  control  the  jiroeeediiigs  ;   while  without 


ijs  are  eorrerlly  recorded  or  tii  [)roieet  itself  fi 


iini 


tl 


lose  as- 


iilts  from  withont  whii'li  have  freinienth'  intimidated  and  more 


I' 
tliau  oneo  dissolved  representative  hod 


siia 


presentative  hmlles. 
•'or  this  leason  the  Constitution  next  provii 
hall  ehiise  iheir   Speakel'  ani 
le  I'owerof  Imi>eaeiiinent."  ' 


pvesenlatives  s 


11 


Thelh 

Ollire 


Irive  tiie  so 
il 


ither 


This  ( lause,  whieli 


WIS  contained  in  most  of  tho  State  eonstitutiops.  lirst  appeari'd 
ill  tlie  report  of  the  committee  of  diUail  to  (In  convention,  and 
was  a  lopted  without  discussi.iii  or  dis^ent.-  The  subject  of  im- 
|ieai:limeiits  will  be  examined  in  a  subsequent  ehajiter,  in  eonnec- 
tion  with  that  pait  of  tho  Constitution  which  provi<les  for  their 
iiioile  of  trial.'' 


The  sjieaker,  as   liis  name  denotes,  is   the   spokesm; 


in 


louse,  a!id    renreseiits  it  in  its  I  laiisaetions  wi 


111   th. 


Seiiatt 


Uid 


!xecuti\c.      [Ii^  lyiiic  and  duties  ai'e  taken  from  those 
;er  of  the    lloiisc  id  ('(Uiimons,  who  is  electted  by  his 


f  th 
■11 


ow- 


ini'inb.'is,  subject  to   the  approval  of  l,lie  Crown.     Althoueh  this 
approval  is  now  a  niattt;r  of  eourso,  as  late  as  the  reigns  of  the  early 


iS  72.  1  Ck)U8tituUua,  Attielo  1,  Sfi 


Ui.u  2. 


-  ^^illlisl)ll  rnpei-s,  r.lUol's  Dflmlft 
2(1  cil.,  viil.  \,  p|>.  ;!77.  395. 


3  Infra,  Clmiiter  XIII. 


"151 


■ir.i 


oi'Ki('r.i;s  OF  iiorsK  ov  i;i:ri;Ksi:NTATiVKs.    [ciiai'.  \. 


Stuarts,  till'  ( 'niwn's  part  in  tlic  sclcctidii  w  as  coiilrollinir,  m,  |  ji^ 
w;i.s  the  cusloiu  uf  llie  kin;;'  to  siifiiify  i-i  advaiici'  the  pi'rsoii  wIkiiii 
lie  wisliml  to  have  clecteil.  As  the  .strciij^'tli  of  tlio  ('oiuiikims 
j>'rew,  tlifv  gradually  iiisistoil  uiioii  llic  i'ri'u  clioice  of  their  spi  akcr, 
which  liiis  been  cohcimK-iI  to  tlii'iii  siin'e  the  rci^ii  ot'  CliarKs 
II.''  A  similar  powur  of  aiiproval  was  ciaiiiied  hy  the  colonial 
£(ovi'riioi-s  appoiiUcd  Ity  the  ('r()\\ii.  It  was  disjuitcd  hy  the  colo- 
nial a^sciiililics.  hut  thiir  posvei' to  withhold  a])[)ro})riatioiis  usiiallv 
made  tln'Ui  successful  in  auy  contest  u^jon  the  subject  which  ainse/' 
In  the  sham  representative  institutions  set  up  by  Napoleon  1  and 
III.  the  executive  had  the  riLjht  to  name  th(,'  president  of  the 
lower  legislative  iiouse.'' 

In  the  absence  of  a  rule  upon  tiie  subject,  llie  speaker  nnist  Ijc 
elected  by  a  majority  vote.  In  two  ca.ses,  ho'.ever.  sj)eaker.s  have 
been  elected  by  a  plurality,  after  tiie  iidoi)tio  i  by  a  majority  (  f  ii 
rule  ])roviding  that  a  plurality  might  elect.'  The  speaker  cannvit 
be  imjicaclied  ;  **  liut  he  may  be  removed  and  another  chosen  in  his 
place  at  the  will  of  the  maj(U-ity  of  a  ijuorum  at  any  li inc.''  lie 
lia.s  "the  I'iglit  to  name  any  meudicr  to  perform  llit;  duties  of  the 
ciiair,  but  sn<di  sul).->titutioii  must  not  extend  beyond  an  adjourn- 
ment ;  provideil.  however,  that  in  case  of  his  illness  he  nniy  make 
such  a])poinlment  for  a  period  not  exceeding  ten  days  w ith  the 
approval  of  the  House  at  the  time  the  same  is  made;  and  in  his 
absence  and  omission  to  make  such  aiipointment,  the  Iiouse  shall 
pr<icee<l  to  elect  a  speaker  to  act  in  his  absence."  '" 


*  The  01. ly  ciisf  (if  the  olertioii  .1/  a 
spciiUcr  wliora  tho  Crown  rcfiiso'i  to 
approve  wfus  thai  ot  Sir  Eilwiiid  Sftv- 
iMoirr,  in  ir,78,  iinloas  tlip  of  Sir -J./hn 
I'opliani,  in  It.'iO,  was  su''l<  1  '  \p. 
Ha1s('ll'.>^  rr<"cP(i('nlH,  Sd   '  ■  ,    ii, 

]ip.  202,  201,  211;  linro'  -i  i.ry  of 
My  t)wn  Time,  vol.  i.  )  n  i;  Black- 
sloni''ri  Coiiinii'iilaries,  vol.  i.  p.  181. 

s  III     1720    tlie    Massaclii  sells     .\^- 
siMiilily    waH   (lissolvi'd    liecausc*   thf 
clainicd    Iho    rislit    to   clioose    tlieir 
spnaltrr  williout  tli(>   fjovonior's   ap- 


"f  Ui(>  Revolt  of  tlio  Amcriciiii  Col'i- 
.lios.  Book  VIII,  cli.  ii.) 

'  lll^Iie,  Los  Constitutions  flc  In 
rranco,  pp.  708,  HC.H,  1170. 

'  Journal,  li5t  Scss.  31st  Congres.', 
..  I.-1O,  ](!3;  >Tonrn.il,  1st  Se!^!i.  :tlth 
a)i!UrPKS,  {>]>.  42'.),  I.IO,  441. 

*  Fn  rr  SpoaUerstiip  of  IIoiisii  of  Kc- 
proseiitirfives,  l.'i  (^ilorado,  .'i20 ;  H.  i'. 
2.5  I'ac.  Kep.,  707;  lilcHinrs  Tinpi'iii'h- 
nient  Trial,  Wliarton's  Htati'  Trials,  p. 
'200  ;  i»/m,  §  91. 

"2  (ii-cy,   ISC;  ,-)  Orcy,   IHI.  .I.'ffi'i- 


proval.  (Paifi-i'y,  Hisloryof  New  Enp-  son's  Xliinuul.  Sec.  IX, ;  /h  re  Sli''Hla'r- 
land,  lfi89-17'27,  pp.  27:)  274,  .377-:!71);  ship  of  Hoiiso  of  Keprescntativcs  15 
Chalmers,  Introduction  to  tho  Hlatorj'      Colorado,  .'■)20 ;  h.  c.  25  Pac.  Kep.,  707. 

10  Knle  I. 


•] 


TIIK    SI'KAKKU    OK    THK    lloCSK. 


453 


ith  tlie 


in  liis 

.  sl.;ill 

in  C<.lo- 

»    i\p  Ih 

It  is  a  part  nl'  llic  sjicakcr's  fiiiictidiis  to  autlicn titrate  liy  liis 
sit,';iatiin'  all  l)ills  aud  resolutions  jiasscd  In-  tlm  IIoiiso  and  all 
I  iininniiiicalioiis  ina<Iu  Ijy  it  to  otliur  l)ranclii's  of  tlie  fjovcrnnicnt.^' 
liis  iiiori'  ini[)orUint  diiti(.'s  arc,  however,  to  preside  and  preserve 
(ir(K  r  diiriiif;'  the  ijroceedings.  ■•  It  is  the  duty  of  the  [iresiding 
nlViier:  To  eall  the  assembly  to  order  at  th(!  time  a{i))ointeil  for  the 
iiiitliuLC.  To  asei;rtaiii  the  presence  of  a  (luorum.  To  cause  the 
jiiuiiial  or  minutes  of  the  preeeding  meeting  to  be  read  and  passed 
ii|i(iii  by  th(!  assembly.  To  lay  before  the  assend)ly  its  business  in 
the  order  inilieated  l)y  the  rules.  To  receive  any  j)roj)ositions 
made  by  ihe  menibeis  and  put  them  to  the  assembly.  To  divide 
till'  assembly  on  (juestions  submitted  by  him  and  to  announce  the 
rrsull.  Tf)  decide  all  (jucstions  of  order,  sidijei't  to  au  appeal  to 
the  assuiibly.'-  'l"o  jireserve  ordt-r  and  decorum  in  debate  and  at 
all  iitlier  times.  'I'o  enforce  sufdi  of  the  rules  of  the  asseiubly  as 
luc  not  placed  in  charge  of  other  ollieers,  or  of  which  the  enforce- 
ment is  not  reserved  by  the  assembly.  To  answer  all  parliameu- 
tiuy  iu([uiries  and  give  information  as  to  the  parliamentary  effect 
(if  prii[)oscd  acts  of  the  assend)ly.  To  present  to  the  assembly  all 
mi'ssages  from  eo-ordinaic  branches,  and  all  proper  conimunica- 
tidiis.  To  sign  and  autheuticate  all  the  acts  of  the  assembly,  all 
its  resolves  and  votes.  To  name  a  member  to  take  his  place  until 
ailjournmeut  of  tlie  meeting.  And  in  general :  'i'o  act  as  the  or- 
gan of  the  assembly,  and  as  its  lepresentative,  subject  alwaj-s  to 
i;s  will."  '■'  In  the  House  of  Uepresentatives.  the  speaker  has  the 
fiuihcr  power  to  appoint  all  standing  committees,  unless  other- 
wise sii(!cially  ordered  by  the  House."  The  powers  of  recognition 
and  of  the  ap])ointment  of  conunittees  \Niiich  are  \csted  in  the 
speaker  give  Iiim  almost  absolute  eontii  1  ■.'{  the  business  trans- 
iicted  ;  and  it  is  tla^  custom  in  the  Hoi.m'  of  Reiirescmtatives  of 
the  I'nited  States,  and  also  in  the  hiwei'  houses  of  the  State 
legislatures,  for  him   to  exercise   these   for  partisan   purposes,  and 


"  rii'ld  V.  (Miirlc,  M:|  U.  S.,  C.l'.t,  r.71 ;  ilivisioii  l.y  tlio  spi>«l<iT  of  the  House 

Ci!v  I'.  ('iili»>  (S.<'.).  2'2  S.  K.  Itc'p.,  Hi ;  of   Comiiioiis    (Ui'oJ'a    r.irliaiiii'ntary 

\V,v,,li  r.  WIkm'Um-  (S.C'.j.  2'2S.  E.  Hop.,  Rules,  p.  ;I7,  imW). 

lai.     TIk-  cfroi't  of  his  .^l^'iuU lire  will  'mnil.,    §:I4,   pp.   ;10-;18;    .see   also 

be  i-oiisiilrrcil  l;itor.  Uoiise  liiiles  I  anil  X  of  Tilid  Congress. 


'-  Tliere  is  no  aiiiiral  from  siK'li  u 


"  Rule  X  of  ,")3d  CVmgress. 


454 


()i'K"'!;i;s  OK  iiorsi';  ok  uhi'Kksicntativks.     [ciiai-.  x. 


to  iii'l   iiH   the    IcailiT  of   tlie   niiijoritv,   with  thu  iissistain 


if 


meiiilit'i'  wild   is  clioscn  hv  a  fiuicus  or  ussuhr's  hv  tominoii  loii- 


it  til' 


lu  posit ioii  1)1'  ii'iidi'i'  oil  the  lloor.  Ho  tluis  is  I'L'sjJonsihle 
for  tlie  iu-tiou  of  the  IIoiisu,  aiid  discharges  in  tliis  respect  many 
of  the  legislative  funetioiis  of  the  iiriinu  minister  under  a  system 
of  cahinet  government.  He  lias  nut,  however,  like  thu  latter,  any 
coiitidl  over  the  executive;  and  his  power  and  that  of  tlie  majnr- 
ity  heliiud  him  are  suiijeet  to  the  checks  of  the  President  and  tiie 
couits,  as  well  as  of  the  ui>per  house.      In  llie  House  of  ( '(iiiiiiiniis. 


Ih 


ic  other  liaiu 


1.  til 


iker,  duriniT  the  nast  centurv,  h 


taine<l  a  dignitied  impartiality. 

'{"he  speaki  r,  liciiig  a  ntemher  of  the   House,  does  not 


'■lit  ti 


vote  uiKin  every  fjui'stiou  w 


111, 


liii'h  is  vested  in  him  on  hciialf 


of  the  eonstitueiK^y  which  he  reprt'sents.^''  Tiie  rules  pioviilo 
that  "he  shall  not  he  required  to  vote  in  ordinary  legislative  jiro- 
ceedings,  except  when  his  vote  would  he  decisive,  or  where  tlie 
hoiis'.i  is  engaged  in  voting  byhallot;  and  in  all  casesof  a  tie  v(jte 
the  (|Uestion  shall  lie  lost."'''  Since  a  pro[)osition  's  di'feated  iiy 
a  tie  vote  as  well  as  by  a  nrijoiity  of  one  against  it,  it  his  hc'ii 
Slid  tint  llie  speikcr  under  tliis  luic  is  never  reipiired  to  vote  cx- 


3pt 


in  ease  ol 


a  haUot.' 


In  the  I'liited  States  the  speaker  is  liable  to  suit    in  the  ci 


iiirts 


for  a  trespass  that  he  has  eommitted  under  the  order  of  llie 
Ilou^e.'"  The  rule  is  otherwise  in  (ireat  Hritain,  where  each 
House  of  Parliament  is  still  tieatecl  as  a  court,  the  di'cisinns  of 
which  Hie  n'spected  by  other  judges  even  though  they  believe 
them  to  be  eriiilicolis,'" 


'■■  Till!  ri^'lil  (if  \\u\  HpciKiT  to  volo 
wlii'ii  then!  is  no  llo  wim  eslfilillsliiMl 
in  l-OtJ  npnii  tli(>  luloplion  of  the 
Tw.Iflli  Amindiiii'iil  lolln'  CoM-lllii- 
tiim.  Niitliinilcl  llacoii  of  ViiHinlii, 
wild  WHS  tlicn  HpcaliiM',  niiido  up  >i,v 
liis  \()ic'  tlin  in'ci'MHary  («ii-llilril«  hi 
faviii-  of  tlio  aniuii(|lniiiil,  IIiiIh  ills- 
rp^;.MiliiiK  as  nin'oiiHill\|||oiiiil  llni 
HiiHKK  vitl"  Uii'll  III  foh'H  Willi  li  ^ll■- 
Imlo  lilm  to  voli-  cxicpt  in  caso  (i{  a 
111'.  (Bonloii,  Thirty  Yt'ai»'  Vl(*w, 
vol     i,    p.    Its.  I      Hi'iiry  Clay,  wln'u 


spoaki'i-  in  1817,  votr  \  in  favor  of  nn 
liili'iiial  iiiipiovi'iuonlliiU  wliirli  .M;i'li- 
mil  hail  vt'looil. 

''  llulo  I  of  M\\  Wulrtl'C'is  "lili'li 
wii-*  oilnli\aU,v  iwlwptoil  April 7th,  ITS'J. 

"(VlUi  lill.'lil,  IMi^OHi  aiul  Maiiiialof 
llio  Hull's  anil  rrartlvoof  tlui  Uouso 
of  Ki'piV'intalivos  (1(S93),  p.  .'>:U. 

'*  Killionni  r.  Tlionipson.  lO;)  C.S., 
IflS;  Kii'lli'V  r.  Carson,  1  Mooiv,  r.C, 

'■'  liiiiiliHl  r.  Alilioll,  11  Ka?l,  1: 
BraillauKh  v.  (lossott,  1'2  Q.  B.  D.,  271- 


?  "••'■•] 


uriiKi:   iKH'si;  oki'ickus. 


4o5 


^  7.'i.    OIlK-r  OilicorN  of  (li<>  Jloiise. 

'I'lie  otlior  Dllicois  ()[  llic  Ilniisc  ol  I>t'[ji'L'tii'ittalivoR  are  .similar 
ill  name  and  luiictidiis  to  tlioHe  in  the  House  of  Commons  and  tlie 
Stale  lefjislatuics,  llm  elerk,  serpeant-at-iirms,  dooikeeiier,  post- 
iiuistfi- and  ehaplain,  all  of  wliom   are  elected  hy  the    House  fiom 


lU'lSdll 


s    not    niemhei's,   and    appoint    tlieir   suhordiuati 


Tl 


ley 


Ihci 


after  tlie  expirati 


thr    ( 


•liosen    and    until   tlieir  sin 
Tlie  chief  dutv  rif  the 


ouijress 


at   ■which    the' 


sois  are  cliosei 


d 


lali- 


rk   is  to  k(H"]i  till'  rccoi'ds  of  tl 


le 


il  iic-e  and  to  make  the  pi'cliininary  entries  in  the  jiuiiial  suli- 
jiii  to  correction  by  the  speaker  and  the  House.''  lie  has  also, 
e  and  statute,  the  important  duty  to  call  tlio  jircliniinary 
hers  upon   the  firijanizatioii  of  each  Congress,  and  to 


y  lU 
roll  of 


mem 

ink 


il 


the 


reserve  order  and  decnle  all  (]Uesticins  <il   order  suhj(.'ct  to  aj 

til  tiie  House  has  eh'cted  a  pennanciit  or  tenipor.iry  speaker.'' 

Is  yives  him  an  eiionnoMs  power,  which  nii^lit  he  used  to  ])aek 

Ijiiuse  with  nieinhei's  not  elected,  since  it  is  the  piactice  to  ro- 


ini 
Til 


to  ent'.'rtaiu  molinus  to  amend  tl 


10  jireliniinaiy  roll  am 


d   t 


o 


ciili'itun  no  appeals  troiu  such  decisions 


h  de 


■h. 


sei'Q-eant-at-ainis 


as    his    name    (leii(it> 


lh(^    niilitar' 


(il'ilcer  of  the  House.  His  duties  are  to  preserve  order,  to  exe- 
cule  the  commands  of  the  speaker  against  memheis  and  strangers, 
ami  thus  to  ju'oteet  the  House  fremi  attaek.s  from  wilhiii  and  with- 


init.' 


In  conjunction  with  tin'  sergeant-ai-aniM  of  the  Senate  1 


10 


oints  the  capitol  [ii 
House.** 


d  he  is  al-o  tin.'  disl 


lursuig  olllrer  11 


f 


duti 


-f    the  doorkeeper,  postnia  >t>'r  and  cha[il;uii    snl'li- 


ii  ntly  appear  from  thvir  l\>spective  u 


AH  tlies 
•eat  Hi'itii 


ollicers  are,  in 


the   Vuited   State.- 


Ithoiig 


di    iiiil    ill 


■;pons 


ihle  to  th 


e  courts  loi 


tre.spasHi'H  comniitted 


^  7:i.   '  Huh'  II  of  :>M  Ciin(,'i\>Bs», 

■^  Iiiiil. 

Utillrs  T,  ]II. 

« r.  s.  Kcv.  Si.,  §  ;ti ;  r.iii>-in.    scc^ 

sti  rn.   !}  ;t8,  over  noli'  n7;    iiifni,   Cli. 
XVI. 

'  Si'o  prooordiiiRs  nt  llio  ornniiiza- 
tiou  ni  llio  ■llf.l,  Ci.ngrcss  ami  suljsi"- 


HiU'Mtly  n'l'eii-.Ml  to  Ij.v  I 'nil  lilli>l(l, 
WiKiwt  and  Minninl,  cil.  of  Is'.i;),  p. 
302. 

0'2(!  S!.  lit  L.,  p.  (VI.'-,;    Kiilii  IV. 

'  r.  s.  i{iv.  St.,  §  iK'21. 

«'2C  St.  (it  L.,  p.  (115. 

»  Rules  V,  VI,  VII. 

i>  DurUctl  V.   Abbott,   U  Eu.st,   1; 


45G 


OKKIOEUS  OK  HOUSE  OI'  KEI'IIF.SENTATIVKS.     [("IIAP.  X. 


ill  olic'dieiice  to  the  orders  of  the  House."  Private  citizens  wliom 
thoy  have  tlius  unhiwfully  arrested  may  Ix;  tjiiieii  from  tiicir  cus- 
tody liy  till'  wi'it  of  habeas  corjjiis  ; '^  l)ut  it  lias  been  lield  tiiat  no 
coiirL  has  jiower  to  control  the  action  of  the  clerk  of  a  legislative 
house  in  iiKikiii<r  up  its  preliminary  roll.''' 


Uradliiunh  v.  (JosscU,  12  Q.  B.  D.,  271 ; 
Siijird,  S  T^  ami  infra. 

"  Kilhoiini  I).  Tliompson,  103  U.  S., 
ICb;  xiiprit,  §  74  iiiul  infra. 

■'-  lu  tlio  Mattor  of  Kilbourn,  S.  C. 
D.  C,  hy  Carter,  C.  ,T.,  ciU'd  liy  Cooloy, 
Coustitutiuuul    Liiuilutioua,  CtU   ud., 


p.  IfilH;  AnreGuun,  ."JO  Kansas,  V,',; 
H.  c.  ;i2  Tac.  Kop.,918.  Hut  snr  Fi-azicr'H 
Iinpea(;luu('iit  Trial,  infra,  §  lit,  and 
App'iidix  to  this  voliiiiu". 

i'M?iugliam   r>.   Jc^wett  (N.  II.),  29 
All.  Kep.,  i'l'Ji;  infra,  Ch.  XVI. 


CHAPTEJl   XI. 

TIIK   SKXATK. 


i;  74.    TIk'  Coiistitiitioiitil  I*r»»vi.si«>iis  ('(niceriiiii}?  tlic  Sonntc. 

Till;  Si'iiatu  of  llic  I'liilcd  Stiiles  is  tin;  only  tippor  k'L;islative 
cliaiiilii'i-  ill  till!  world  liiiit  lias  thu  strciiirth  to  resist  the  will  of 
the  cleutonito  for  a  coiisidcralilc  jicriod  ol'  time.  It  represents  the 
I'cilcral  i)riiiei})le  in  I  he  odveinmeiit,  and  besides  its  legislative 
lias  iiiijjortiint  executive  functions. 

The  constitutional  provisions  conceriiinir  the  Senate  are  as  fol- 
lows :  — 

'•Tile  Si'iiate  of  the  T'liited  States  slinll  he  coiiiposed  of  two  Sena- 
tors from  each  Slate,  elioseii  by  tlie  I.ey;islatin'e  tliereof,  fur  six  Years; 
and  eaeli  Seuator  shall  iiav(!  one  \'ote. 

••  iNiinediately  after  tiiey  sliall  he  asseiiihled  in  ( 'oiiseqiienee  of  the 
tiist  Kk'etion,  they  shall  lie  divided  as  e(|iially  as  may  he  into  three 
■('i:iss('».  Tlic  Seats  of  tiie  Senators  of  the  first  (lass  sliall  ho  vacated 
at  the  expiration  of  the  second  Year,  of  the  second  t'lasa  at  the  ex|)ira- 
tioii  of  the  fourth  Year,  and  of  the  third  Class  at  the  expiration  of  tlu' 
sixth  Year,  so  that  one-third  may  ho  chosen  every  second  Year;  ai.d  if 
\iu'aiieios  liapiu'ii  hy  Henio;natioii,  or  otherwise,  durinsi;  the  I{ecess  of 
tin'  l-eiiislatiiro  of  any  State,  the  Kxeetitive  thereof  may  make  ti'!ii]io- 
r;iiy  Appointments  until  the  next  ^Meeting  of  the  I.ejiislature,  >\i)ieli 
6li:ill  then  till  such  \'acancios. 

"  No  Person  shall  ho  a  Senator  who  shall  not  have  attained  to  the 
Ape  nf  thirty  Years,  and  been  nine  Yi  ais  a  Citizen  of  the  riiite<l  States, 
ami  who  shall  not,  when  elected,  he  an  Inhaliitaiit  of  that  State  for 
which  he  shall  he  chosen. 

'•The  Vice-President  of  the  Inited  States  shall  he  President  of  the 
Si'iiate,  l)i;t  shall  have  no  \'ole,  iiiiless  they  be  ei|iially  divided. 

"The  Senate  shall  chase  their  other  <  )llicers,  and  also  a  President  pro 
tcii]|>(ire,  in  the  ^Vbseiiee  of  the  \'iee-l'resident,  or  when  he  shall  exer- 
cise the  Ollice  of  President  of  the  Inited  Stales. 

"The  Senate  shall  have  tne  sole  Power  to  try  all   Impeachments. 

457 


■i:.8 


Till':    SKNATK. 


[rilAI'.  XI. 


M'lieri  Hittiii;j  for  tlmt  Piiiposc,  llicy  wliall  l)i'  on  Oath  or  Alliniiiuion. 
Wlion  tlu!  rri'sidciit  of  tin;  Liiittil  SUiU'S  is  tried,  the  Chief  .liistiri' 
sluill  |irt'si(U' :  timl  no  Person  siiall  be  convieted  witlioiit  the  eoneiiiiiiKT 
ol'  tw'o-tliirds  of  llie  McimIkms  |ireseiit. 

"  Jiidiiiiicnt  in  Cases  of  Inipeaehnient  shall  not  extend  fiiitiicr  tliiiii 
to  removal  from  Ofllee,  and  disiiualifieation  to  hold  and  enjoy  any  ( lllioe 
of  honor.  Trust  or  I'rolit  under  the  I'nited  States:  hut  the  I'arly  con- 
vieted  shall  nevertheless  he  liable  and  subject  to  ludiclnieut,  'Iriiil, 
Juds^ment  :ind  I'unishment,  according  to  law."' 

The  I'resident  "  sliall  have  Power,  by  and  with  the  Advice  and  ('oii- 
sent  of  the  Senate,  to  make  Treaties,  [novided  two-thirds  of  tlie  Sciia- 
tois  presiMit  concur,  and  he  shall  nominate  and  by  and  wilh  tlu:  Advice 
and  Consent  <if  the  Senate,  sliall  appoint  Andiassadors,  oilier  [iiililic 
Ministers  and  Consuls,  .Indies  of  the  Supreme  Court  and  all  otlier  Olli- 
ccrs  of  the  United  States,  whose  Appointments  are  not  herein  otherwirie 
provided  for,  and  which  sliall  be  established  by  l^aw."  ^ 

"  If  no  i)erson  have  a  majority  of  tlie  electoral  votes  for  X'iee-l'rcs- 
ident,  then  from  the  two  higiiest  members  on  the  list,  the  Senate  sliall 
choose  the  N'ice-l'resident;  ii  quorum  for  the  purpose  shall  consist  of 
two-thirds  of  the  whole  number  of  Senators,  and  a  majority  of  iLe 
whole  innnber  shall  bo  nec(>ssary  for  a  choice."''' 

Tlicsc  hi.st  j)o\vcrs  will  be  discusseil  snl)se(]tiently  under  the 
liead  of  tiie  executive.  'J'lie  remaJMiiij^  jjurt.s  of  the  Constitution 
wliicli  refer  to  the  Senate  do  so  in  connection  with  the  House  of 
Representatives  and  will  he  considered  in  their  consecutive  order,* 


§  74.  1  Const  ituliou,  /  rtielo  I,  Sec- 
tion :i. 

-  Iliiil.,  Article  It,  Section  2;  infra. 

•1  Iliid.,  TwelfMiAiiioiKbneiit;  infra. 

*  The  functionH  of  tlie  Si-iiato  of 
the  Ki'piililie  of  Jti'xico,  bi'sides  lliose 
wliii'h  Jiii'lenisljitive,  un!  thus  delined 
in  tlic  t-'()iisliliill()ii  (An..  72,  H):-- 

"Till'  e.KtIusive  pmver-i  of  the  Sen- 
ate are :  — 

"a.  To  ii|>iinivc'  ihc  tri'iitios  and 
diploriiiilic  conveiilions  wliii-li  the  Ex- 
•■(■iithiMuiiy  iimUe  wilh  forc'lKii  powiTS. 

'■((.  To  riitlfy  tlio  niipoinliiieiita 
■wliicli  the  Prosidetit  of  the  Uepuhlie 
may  make  uf  ministers,  diploiiiatie 
agents,  consuls-(5(!ueral,  superior  cm- 


ployts  of  the  Treasury,  eoloaels  iind 
other  superior  olllcers  of  the  imlioiial 
army  and  navy,  on  the  tonus  which 
the  law  shall  provide. 

"  c.  To  HUlhorize  the  Executive  (o 
pencil  thedepaitureof  iiiitioiial  truoiis 
beyond  tlie  limits  of  '!'e  llepiiulii',  llio 
passage  of  forei;;a  Vci'Mh  throu^'li  the 
national  territ  <ry,  tlu-  statlnii  ul 
sipiadroMs  of  ot  er  |io'.v"''8  for  iiioro 
than  a  month  in  the  w. iters  of  the 
Kepiibllc. 

"  (/.  To  give  its  consent  in  ord>T  that 
the  E.xecntive  may  dispose  itf  the 
national  guard  outside  of  tlieir  re- 
spective States  or  Territtirics,  deter- 
mining tlie  necessary  force. 


s  "''J 


OUICIN. 


4.','.) 


S  7r».    <>ri;;iii  of  the  Soiiato. 

'I'lic  iminoof  Seiiiilo  is  liikcn  finin  tlic  hody  wliicli  nilcd  luiciimt 
Uiiiue;  iiiiil  its  j)n)lot\jiu   was  tin;  Iiody  of  soiiior  wiiniuis  \Nitli 


Icr  the 

linuiiiii 

u>t'  of 


itivi'  lo 

ill 

n  101)8 

lli 

■,  llio 

1':- 

U  till' 

li' 

11    "t 

>v 

liinri^ 

f  tlio 

rd. 

■r  llmt 

^      ) 

f   the 

Uh 

•ir  re- 

i^> 

dder- 

"f.  To  doclaro,  when  tlio  roiiBtllii- 
liiin;:!  Ii't,'i;iliilivciiiiil  (•X('('iUiv<i  |iowiirH 
(if  a  Suit'-  HliiiU  liiivi-  cINiipiii'iii-i'd,  Uiiil 
liic  ciM^  li:iH  iirriv«Ml  fur  iiii|iiiiiilliiK  ti> 
it  ,1  pruviiioniil  (iovcnior,  wlio  bIiiiII 
call  .  loi'tions  In  ciiiifdriiiily  wllli  llio 
('(•n>i  imliiMi.'il  laws  (if  tlio  Kaiil  State. 
Til  ■  ;.ii;«iiiiiiiii'iiluf  (idvi'riior  sliull  lie 
iii,.ili^  liy  till)  rcdcriil  Execiitivo  with 
till'  a|i| nival  uf  tlio  Spiiato,  mid  in  lis 
rcns  I'H  Willi  tlio  iipi^roval  uf  tin' 
P'TiuaMcnt  l-'i)iiinilH.>.i(in.  Said  fiini'- 
liuiiay  f-lmll  not  lj(>,  clccti'd  Constitii- 
liniial  < ii.niTiuir  111  Iho  i'|i'cli<in«  which 
arc  had  ill  virtiio  of  llio  Kiiiniiidiis 
wiiicli  In-  Bliall  ihsiic. 

■■/.  To  dccido  iiolitical  (iii('stii)iirt 
wliirh  may  ari.s()  lictwccii  tlio  powcn's 
of  a  Siati-,  when  any  of  tlioiii  may 
»|i|cir  with  thin  piir|ioso  in  tlio 
.Scuair,  or  wlii'ii  im  aiToiint  (if  wiid 
(lui'sllona  roust  iliitionnl  ordor  shall 
luivc  Ihiou  iutt'iTUiitcd  (lurinj?  a  con- 
lli'  I  of  aims.  Ill  this  case  llio  Senate 
sliail  (lict.ato  its  rosiiliition,  licliif? 
siiiiji'ct  to  the  (jcnoral  C.institiUiun  of 
tliL'  It-piililii^  aiid  lo  thai  of  llu'  HIato. 

•■  The  law  shall  ro;^ulali'  the  ('."cer- 
ci'i'  (if  this  power  and  that  of  tho 
pr liiij,'. 

"i;.  To  ('(institute  itself  a  jury  of 
iiiiii.'ai  >iit  ill  accdrilauee  with  ,\rt.  105 
ofiliis  Constiliitioii." 

"Art.  105.  Th(^  houses  t^hall  lalio 
(.'(i-'iiiaiui'O  of  onU'ial  criine.--,  llio 
IIiii-^u  of  Depiitii>s  as  a  jury  of  ae- 
ciiMiiion,  the  Senators  as  a  jury  of 
juilKiueut. 
"Tlie  jury  of  aeeusatioii  shall  have 
tor  lis  iilijecl  t(,  declare,  by  an  aliso- 
liil''  majority  of  votes,  whether  tho 
nc'u-cd  is  or  is  not  eulpalile.  If  the 
Uetlaialion  sliould  bo  absolutory,  the 


fiau'tlonary  shall  continue  in  the 
e.xorcise  of  hlx  olHco ;  if  it  should  be 
eouileiiinatory,  he  shall  be  iiaiiiedi- 
alely  deprived  of  his  olllee,  and  shnll 
bo  pl'ieed  at  the  disposal  of  the  Senate. 
Tho  latter,  formed  into  a  jury  of 
judfjiueiii,  and,  with  tho  iireseneo  of 
the  criniinal  and  of  the  aecuser,  if 
there  should  bo  one,  shall  iiroeeed  to 
apply,  by  an  absoiiile  inajorKy  of 
votes,  tho  punishment  which  the  l;nv 
dosiKuates." 

Those  of  the  Senate  of  the  Kepublio 
of  Coioinbia :  — 

"Art.  as.  The  Senate  shall  also  bo 
iuvesled  with  the  I'ollov.iiij.;  powers: 

I.  To  reinstii|e  thiis(>  who  have 
torieiled  tlioir  i'ili;',eii'.|i!p.  This  act 
of  eleineiiey,  aeeordin.^'  to  the  ease 
and  eireuinslaiucsof  liiin  who  solicits 
it,  shall  have  reference  only  to  eleclo- 
ral  iij;lits,  or  also  l.i  tho  capacity  to 
(111  delorniined  putilieonices,  or  jointly 
to  the  e.xereiso  of  all  political  rights. 

II.  To  appoint  two  members  of  tho 
Council  of  Slate. 

III.  To  accept  or  decline  tho  re- 
signations of  the  iirosidenl  or  vice- 
president  or  the  (lesi^;nato. 

IV.  T'o  eonllrm  or  reject  nomina- 
tions made  by  the  President  of  the  Ito- 
iniblie  of  judges  of  the  Supienie  Court. 

V.  To  coiillnn  or  reject  tho  111  Hilary 
aiipoiutments  made  by  tho  Govern- 
ment, from  the  rank  of  lioulenant- 
eolonel  to  that  of  the  hifjhest  ofllces 
iu  the  army  and  navy. 

VI.  To  ftianl  leave  to  the  President 
of  the  Kepublic  to  be  temporarily 
absent  from  the  capital  lor  oilier 
cause  than  sickness,  or  lo  e.xercise 
his  fuuclions  outside  of  the  capital. 

VII.  To    permit  the    passage     ot 


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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

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THK   SKNATE. 


[CHAl-.  XI. 


wlioin  tlie  king  or  (iliieftain  lield  liis  councils  of  war;  but  in  its 
legislative  functions  it  reseniblos  the  Roman  tribunate  more  closely 
than  its  name  father,'  and  its  immediate  model  wius  tlie  House  of 
Lords. 


fiii't'ign  troops  through  the  territory 
of  thu  Il"iml)lic. 

VIII.  To  appoint  tlio  coraniis- 
sioners  roferroil  to  in  Artlclo  4  (sur- 
VL'yorr!  of  Ijoiindury  lines). 

IX.  To  nutliori/.o  tlio  Oovornment 
to  iloc'lan!  \Viiriig:iinHtiinotln!r  nation." 

Those  of  tlio  Senate  of  tlie  Uepublle 
of  KeimUor : — 

"  Art.  45.  Tlio  e.xelusivo  powers  of 
the  Senate  are : 

1.  To  tiiUe  cognizance  of  and  try, 
upon  articles  foriiiulated  by  the 
Chamber  of  Deputies,  cases  of  iui- 
poachnient  against  the  publico  fuue- 
tionaries  spoken  of  in  aiiicle  50. 

2.  To  restore  citix.eMsliip  to  any 
n^rson  who  may  have  lost  th(!  same 
for  whatever  reason,  except  treason 
to  the  lionelil  of  a  hostile  IState  or 
foreign  invaders. 

3.  To  restore,  upon  proof  of  in- 
nocence, tiie  good  name  of  tlioso  un- 
ju.stly  con<lemn<'d." 

Tliosi>  of  the  Senate  of  the  Argen- 
tine; Ilepulilie  :  - 

"Art.  LI.  The  Somite  shall  have 
the  Bol(!  power  to  try  in  public  the 
oniclals  impe.U'hi'd  tiy  the  Chamber  of 
Deputies,  and  Senators,  wlieii  silting 
for  tliat  ])urpose,  shall  be  sworn. 
When  the  inipeaehed  olUeial  is  I'resi- 
diMil  of  th<!  nation  the?  Chief-Justice  of 
the  Supremo  Court  shall  preside  in 
the  Senate.  No  person  shall  bo  con- 
vi(;tcd  without  the  conciirrsnco  of 
two-thirds  of  the  members  present. 

"  Art.  LII.  Judgment  in  cases  of 
Impeachment  shall  not  e.tteiid  further 
than  to  removal  froin  olllce,  or  dis- 
qiuilillcation  to  hold  and  "ujoy  any 
olllce  of  honor,  trust,  or  prollt  under 
the  Nath)n ;  but  the  parly  convicted 
shall  nevertheless  be  liublo  and  sub- 


ject to  indictment,  trial,  and  punish- 
ment, according  to  law,  in  and  by  tho 
ordinary  courts. 

"Art.  LIII.  It  is  also  incunilient 
upon  tho  Senate  to  authorize  the  Pri'gj- 
dent  of  tho  nation  to  declare  a  slaleef 
siege  at  one  or  nuin?  jioinls  in  the 
national  territory,  in  I'asi!  of  foreinn 
aggression." 

In  the  Republic  of  France,  by  the 
law  of  Fi^bnuiry  24,  1.S75,  Article '.(:- 

"  Tlie  Senate  may  be  constituted 
a  Oiurt  of  Justice  to  judge  eltlicr 
tho  rresidont  of  the  Kepublie  or  tho 
ministers,  and  to  take  cognizance  ef 
attacks  made  upon  the  safety  of  the 
State."  For  an  account  of  the  Frciicli 
Senate,  see  The  I'resi'iil  Const  it  iition 
of  France,  by  U.  Salcilles,  .\iin.ils  ef 
American  Association  of  I'olitical  au;l 
Social  S/ience,  vol.  vi,  p.  37. 

In  the  Kepublics  of  Venezuela,  Chill 
and  Ilrazil  the  Senate  ai.so  tries  iiii- 
peachments.  In  ISelgium  inipiacli- 
nients  are  instituted  by  the  lewir 
houso  and  tried  before  n  Court  el 
Appeal  which  consists  of  a  joint  niccl- 
ing  of  bol  li  houses  (Art.  'J0|.  In  Ilmr.il 
and  Chili,  the  appointments  of  juilgos 
and  (liplonnitic  olllceis  must  lie  maile 
with  tint  lulvbe  and  consent  of  tlio 
Senate.  In  Chili,  certain  olliccrs  can- 
not be  removed  without  the  consciit 
of  tlio  Senate  when  it  is  in  session; 
and  the  Presldi'iit  must  "comniaml  In 
person  thc^  Inland  and  naval  fDrccs, 
in  accord  irith  the  Senate,  and  iliiiinK 
its  recess,  with  the  Standing  Ceni- 
luittci'"  (Art.  H3.  See  Hancock,  His- 
tory of  Chili,  pp.  425-4.".5). 

§75.  'The  duties  of  the  Keinan 
Senate  were  <hielly  c.veculive  i  Maine, 
Popular  Govcrumuut,  Esaay  IV). 


■] 


oinr.iN'. 


461 


'I'liL'  Iiicaincralsystonif/f  k'trisliitioii  was  due  to  a  litippy  accident, 
tilt;  [)rL'fcn!iicc  of  tlie  Kiiglish  clergy  to  vote  their  siii)])lic.s  In 
convocation  ratlier  than  in  I'arlianient.^  'J'he  three  or  four  estates 
wliifh  gained  the  right  to  ussend)le  on  the  continent  of  I'hirope 
will!  more  subject  to  division  and  less  capalile  of  co-opi'iation 
lliiiii  the  Lorils  and  Connnons,  and  so  were  unahle  to  niaiiit:iin 
their  position  against  tlie  court.  'J'he  gentlemen  of  England  in 
iiolli  houses  usually  stood  together  as  long  as  the  aggression  of 
tlie  king  was  to  lie  feared  ;^  and  their  success  made  tliat  legisla- 
tive form  the  admiration  of  the  philoso])hei-s  of  the  eighteenth 
century. 

Tlie  colonial  governors  were  aided  liy  appointed  comicils,  or  in 
ii  few  cases  by  a  body  of  elected  assistants,*  who  I'eviewed  the 
nuiisiires  passed  by  the  assendilies.  They  at  first  sat  together,  but 
a  (lis]iute  over  the  ownership  of  a  pig  caused  in  iMassachnselt-;  a 
.SI 'paiation  in  1044  which  was  iiiiitaled  by  the  other  colonics;  and 
the  lower  houses  used  their  studies  of  ICnglisli  history  to  asseit 
that  they  were  entitled  to  all  the  jiriviiegcs  of  the  House  of  Com- 
iiKiiis,  including  the  control  of  bills  of  supply,  and  tfi  insist  that 
the  councils  had  in  that  respect  and  as  regards  impeaeliments  the 
siii;!e  powers  as  the  House  of  Lords.''  At  tlie  forniation  of  the 
111x1  State  constitutions,  the  natural  eoinse  was  I'.sually  adopted: 
u  continuance  in  iniifaition  of  the  jiractice  in  the  mother  country 
uiiil  the  colonies.®  'I"he  praise  by  Montescpiicu  of  this  part  of 
the  liritisb  Constitution  and  the  nu'ollcction  of  the  conduct 
(il  llu!  Long  Parliament  duiiiig  the  supjiressioii  of  the  House 
of  liOids,  made   the   division  of    the   legislative    power  pojitdar.^ 


'  Siiprn,  §  47. 

■■'  Sii-  May,  Con.stlUitionnl  History 
of  Kii(,'laii(l  (Am.  od.),  vol.  I;  ch.  •  , 

'  .S'»;>ra,  §  47. 

•''  Moniii,  Rise  niid  Dovolopniont  of 
till'  liii'amcriil  Systoiu  in  Amoricu, 
JnliiiH  Hopkins  University  Sliidlos, 
viil.  xiil,  pp.  211,  2If>.  Cliiilmrra,  In- 
Iriiiiiii'lioii  to  tho  HiBtory  "f  tlu'  Ito- 
vi'il  of  tlio  Aincrii'an  OolonicH;  Huprit, 
IS  17,  over  nolo  27. 

'  PooroB    Charters    and    Cunstitu- 

tillllS. 


'  "Sovoral  Slates,  sinco  tlio  war, 
havo  cxporicnocd  fho  ncopssily  of  a 
division  of  tlid  li'gislatiiro.  Marylmid 
was  saved  from  a  most,  iii'i'nk'ioiis 
measure  liy  lier  Senaic.  A  rage  for 
paper  money,  borcleriiiji  on  niailnoss, 
prevalleil  In  llioir  House  of  Delegates 
—  an  emlsRion  of  £.'iOO,000  was  pro- 
posed ;  a  sum  equal  to  the  elro'ilatlng 
mediiiiii  of  tlio  State.  Had  the  sum 
been  emitted,  every  slillliiig  of  siioele 
'  lid  have  been  driven  from  eireu- 
latloD,  Olid  most  of  It  from  the  State. 


4!:-. 


TIIK    SKNATK. 


[ruAV.  XI. 


r»';iMsylviiniii,  Georgia  and  Venuoiit  wuro  the  only  Stales  to  (8- 
tablisli  li'gislaturus  with  single  eiiainbei"s ;  and  the  action  of  tho 
foinier  was  due  to  the  personal  preference  and  inlluence  of  Knuik- 
liii.  Mis  remark  that  a  legislature  with  two  branches  wns  ]\\:v  a 
wagon  driven  hy  a  horse  before  and  a  hoi-se  behind,  in  opposite 
directions,  is  said  to  have  carried  the  measure  tiirough  the  consti- 
tutional convention.^     The  subsequent  repetition  by  tiie  French 


Such  a  liisH  woiilil  not  have  bi'cii  ro- 
j>airi'(l  ill  kovi'H  ycais  -  not  to  iiicution 
tlio  wlioli'  catalojiiKj  of  frauds  which 
would  havt!  followed  this  mfiasurc. 
Th<;  Soiiatc,  like  honest,  ju<lii'iou8 
nun,  and  tho  protectors  of  the  in- 
terests of  the  Stiiti»,  llrnily  resiBted 
tlie  nine,  and  Kf'V"  t-ho  lieoi)lo  time  to 
codI  and  to  tliinl<.  Their  rosistaneo 
was  (jfTectual  —  tho  people  aei|uieseed, 
and  the  honor  and  iuterost  of  tho 
Slate  were  secured. 

"The  house  of  representatives  in 
('oiiiiei'.icul,  soon  after  the  war,  had 
taken  offiMiee  at  a  certain  act  of  Con- 
gress. Tlie  upper  house,  who  under- 
stood tho  neeessity  and  expediency  of 
the  lueasuro  better  than  tlie  people, 
refused  lo  concur  in  a  renioiistranco 
to  (loiigress.  Several  other  elreum- 
Btanees  gave  uinlirano  to  the  lower 
house;  and  to  weaken  or  destroy  tho 
inilueiice  of  the  Senati',  the  repre- 
senlalives,  anuuii.;  other  violent  pro- 
ceodiugs,  resolved  not  merely  to  ro- 
movc\  the  sisit  of  Kovernmeiil,  hut  t  > 
make  every  county  town  in  the  State 
the  seat  of  goveriunent,  by  loUitiou. 
This  foolish  resolution  would  have 
dlsKnieod  school-boys  —  tho  Senate 
saved  the  honor  of  tho  State  by  re- 
jecting it  with  disdain  —  and  within 
two  luontlis  every  representative  was 
asliaiiieil  of  the  conduct  of  tlie  liouse. 
All  pii'ill<;  bodies  liavo  these  llts  of 
passion,  when  llieir  conduct  seems  to 
bo  perfectly  boyish  ;  and  in  these  par- 
oxysms, n  check  ishiglily  necessary. 

"  I'eimsylvania  exhibits  many  iii- 
Btances  of   this   hasty   conduct.     At 


one  session  of  tho  legislature,  mi 
armed  forco  is  ordered,  liy  a  pic  -iiii- 
tato  resolution,  to  expel  thescttleisul 
Wyoming  from  their  jiosschsioiis-  -iii 
a  succeeding  session,  tho  same  peojili' 
aroconllrmiHl  in  their  possessions.  .\i 
one  session,  a  charter  is  wrested  fioiii 
a  corporation  —  at  aiioUn'r,  resuned. 
The  whole  Slate  is  split  into  parties  - 
everything  is  di^cidcd  by  parly  — any 
proposition  from  one  side  of  the  liouso 
is  sure  to  be  damned  by  tho  otiicr  — 
and  when  oiio  party  peicciv4's  tho 
other  has  llio  advantage,  they  jil.iy 
truant-  -and  an  ofllcirora  mob  liiiiit 
tho  absconding  members  in  nil  llio 
streets  and  nileya  in  town.  Sucii 
farces  have  been  repeated  in  I'liiladel- 
phia  — and  ihrreal  ni:  Il.'id  Ihcbgis- 
lature  been  framed  with  soiiio  olieck 
upon  rash  proceedings,  tho  h  lor  of 
tho  State  wouhl  have  been  saved — 
the  party  spirit  would  have  dii'd  wiili 
the  measures  proposed  in  the  )■  "..'is- 
latiiro.  IJut  now,  any  nu'ii.'^uri^  iiiiiv 
be  carried  by  party  in  the  liousi'.  it 
then  becomes  a  law,  and  sows  tlio 
seeds  of  dissension  tiirou(;lioiit  lli" 
state."  (An  examiuatioii  iiilo  liie  Iciul- 
iiig  principles  of  the  Federal  Con-li- 
tutiou  propos<Ml  by  tho  late  C  iivcii- 
tionheldal  riiiladcdphia,  wilha  iswcrs 
to  the  people's  objections  that  liiivK 
been  raised  against  the  8yst<'iii.  liy 
a  Cilizen  of  Aiiiorica  |liy  Noah  Wcli- 
sti'r|,  pp.  1U12;  Ford's  rainplili'ts 
on  the  Constitution,  pp.  33  .'U.) 

»  Adams,  Defence  of  American  Cun- 
slitutions,  vol.  I,  pp.  10tj-106i  Story 
on  tho  Cuustitutiou,  §  637. 


onioiN. 


463 


N:iti(inil  Convention  of  the  abuses  of  the  I^ong  Parliament,  com- 
liiiu'd  with  fur  greater  excesses,  so  deeply  impressed  miinkiiid 
wiili  tlio  need  of  some  check  upon  a  poj)ular  assembly  that  the 
bitiiiiuT.il  system  is  now  almost  univei-sal.' 

As  the  nineteenth  century  approaches  its  close,  we  see  criticisms 
of  sicnnd  chamlMjr.s  similar  to  tiiose  wliich  were  rife  at  the  end  of 
tlie  ciiihteenth  century."*  "  If  a  second  chamlwr,"  suid  Sieves, 
"(li-.s>'iits  from  the  first,  it  is  mischievous;  if  it  agrees,  it  is  stiper- 
Hiicius.""  The  two  principal  advantages  of  such  a  system  are  the 
prcvi'ution  of  tyranny  and  self-seeking  by  a  single  house,  and  the 
clu'ck  to  nvsh,  ill-considered  measures  whicli  may  be  <lemandiMl  by 
tlic  people.'^     The  former,  men  have  now  learned  to  prevent  by 


»  Tlic  only  Blnglo  logiMlatlvo  cham- 
bers now  in  <>xiHtnm'0  wlilth  tlio  rn- 
Fc.iirhcs  of  thu  writer  hiivo  hwn  ablo 
t<i  (lUcovor  nro  In  Sorvia,  Bulgaria, 
Gri'.'i(>,  till!  Orau«o  Fri'o  SUito,  Sail 
Diiniiii^'o,  Salvailiir.  HoinliiraK,  (iualB- 
lii.ila  (lii'l  (hi!  Colony  of  irilish  Coliim- 
liiatanil  Iho  history  of  iiioMt  of  tliem 
lias  iiol  li'inli'tl  to  coiiimHtiil  thi!  In- 
st it  ill  ion.  TluM'oimcllsof  Xloulcni'gro 
iiii'l  Aiulorru  socm  to  bi'long  to  tho 
c.irl'cr  (y[io,  wh<'r<)  tho  votiTs  havo 
(111  iiMiiiiMliato  Hharo  In  loKislatloii. 
Ill  I'iiil'iml  representati\"cs  of  tho 
{(jiir    i'stati'8    arc    still    owasiionally 

COIlVoliOll. 

''MIltiMi,  in  his  Iloady  anil  Easy 
Wiiy  to  F,st(ililisln>  a  Frcn  Coinnioii- 
wiviltli,  Sir  .Taiiic'sMatkliilosli,  in  Vin- 
diciai"  (i.illii'.-io  (§  iv),  and  Fraiililin  in 
till-  lirst  Pennsylvania  Convention 
(^ii;ini,  over  nolo  8  ,  all  men  of  dyo|) 
le  iriiing  and  broad  |iolllie;il  expcrl- 
onee,  woro  bollevers  In  tho  advan- 
tiiKcrtof  a  Bln^lo  lofjislitivo  ehamhnr. 
S)  also  woro  TiirK"t  leltor  to  Dr. 
1  ill  e  im  Iho  Anieriean  Ilevolntlon) 
niiij  till!  leaders  of  ih«  French  llovolii- 
tioii.  John  Sinait  Mill  cxpressinl 
a  iM-efereuei!  for  a  slnglo  chanibor 
with  minority  ropresenlatlon  (  Eopro- 
ni'iitalivi!  (lovermnent,  eh.  xili).  Hoo 
al.su  thu  remarks  ot  Quldwiu  Umilh  !u 


the  Uystaudor  for  May,  IhSi),  <iiiotod  by 
Doulro,  Conslitiition  of  Canada,  p.  66; 
infra,  uoto  11;  and  tho  deliales  in 
till-  eommitleo  on  tho  Freneh  Cmisti- 
lution  of  ISIS,  Souvenirs  d'.Vlexis  de 
Toeipioville,  Paris,  IS'.Ct,  p.  Mf.S. 

"  S(>o  M.iino's  eriliclsm  of  this 
nplf^ram  in  Popular  Ctovoriimcnt,  p. 
178.  "  Nominnled  Sonales  are  nulli- 
lioH  with  a  latent  possibility  for  mls- 
chlof,"  said  (loldwin  Smith  in  tho 
Ky.itander  (Toronto,  May,  1880,  (inotod 
by  Doutre,  Canadian  Constitution,  p. 
07). 

'■-  "  I  attach  little  woiglit  to  tho 
arRumont  oflenost  iiifioil  lor  having 
two  Chamljers  —  (o  prevent  proeipi- 
taney,  anl  eompel  a  s<>conil  delibera- 
tion ;  for  It  must  bo  a  very  lll-eonsti- 
tuted  represiMilativo  assoiiihly  In 
whieh  the  established  forms  of  busi- 
ness do  not  rmiulro  many  nmro  than 
two  deliberations.  The  consideration 
which  tells  most  to  my  jiulgmenl,  in 
favor  of  two  Chambers  (and  this  I  do 
regard  as  of  some  moment),  is  tho 
ovil  offeet  proilucod  upon  the  mind  of 
any  holder  of  [lower,  whether  an  in- 
dividual or  an  assiMubly,  by  tho  con- 
seioiisness  of  having  <mly  themselves 
to  consult.  It  IsliniHirtantthalno  set 
of  persons  should  bo  ablo,  even  tem- 
porarily, to  make  their  sic  voh  prevail 


464 


THE  SENATE. 


[CIIAI-.  XI. 


means  of  the  powers  A'ested  by  written  constitutions  in  the  exciii- 
tive  and  tlie  courts.  Tlie  latter  lia.-s  seemed  less  important  to  tlici.sc 
wlio  have  been  accustomed  for  more  than  a  centuiy  to  see  tlic  [no- 
ple  5j;overii  themselves  without  resultiiijr  injury;  and  the  stiihhoiu 
opposition  of  the  House  of  I^ordti  to  almost  every  salutar^Mneasiiiv 
of  reform,  whether  social,  religious  or  political,  has  aroused  slonns 
of  2)ul)lic  indignation  whicii  iiave  destroyed  its  inllueiiec  and 
greatly  weakened  its  powers.  It  is  now  usually  conceded  to  he  a 
rule  of  tlie  Constitution  in  (Jreat  Hritain  and  its  colonies  wliere  the 
Crown  lias  the  power  to  appoint  mcndjei's  of  tlie  ujiper  chaiuher, 
that  the  House  of  Lords,  Senate  or  Council,  must  pass  a  bill 
wiiich  it  has  once  rejected,  if  in  the  meantime  the  leaders  of  the 
lower  branch  have  apfjcaled  to  the  people  by  a  dissolution,  and  a 
new  bouse  of  representatives  has  Ijcen  elected  and  passed  the  same 
measure  a  second  tinie.i^  In  case  of  a  refusal  the  Crown,  at  the 
rc(iuest  of  the  leaders  of  the  elective  assembly,  will  appoint  ciougii 
niemlwrs  to  overcome  the  opposition."  The  elective  uppei  il;i'n- 
bers  in  other  countries  have  little  hold  on  popular  respect;  and  on 
any  dift'c.'rence  of  importance  with  the  lower  houses  they  are  nearly 
always  brought  to  terms  by  a  tlireat  to  cut  off  the  supplies,  whicli 
they  know  will  produce  a  crisis  wherein  the  peo[)le  will  take 
sides  with  their  more  immediate  representatives.  The  bicam- 
eral sj-stem  was  at  one  time  in  favor  for  cities  in  the  United 
States,  but  is  now  generally  abandoned  there.  It  [lersists  in  full 
vigor  in  the  State    legislatures,    but  few  if  any  instances   have 


without  iiskinR  any  ono  else  for  Iii8 
coiiHOnt.  A  majority  in  a  single  as- 
senilily,  wlioii  it  lias  aBsunieil  a  por- 
maiK'iit  cliaractor — wlicn  composed 
of  tlio  same  persons  luibitiialiy  acting 
to^^ctlior,  and  always  assured  of  vic- 
tory in  their  own  Housu  —  easily  be- 
comes desix)tic  and  overweeninf?  if 
released  from  the  necessity  of  con- 
sidering whether  its  acts  will  be 
concurred  in  by  another  constituted 
authority"  (Mill,  Representative  Gov- 
ernment, ch.  xiii). 

'•''  See  Lord  Salisbury's  Speech  on 
the  Irish  Church  Bill,  cited  by  Maine, 
f  opular  Govornmont,  p.  117. 


'*  Sudi  an  appointment  of  twelve 
peers  was  made  once  in  (Ileal  liiiiain, 
by  Queen  Anno  in  171'2,  in  oniir  to 
create  a  Tory  majority  in  the  Ilniise 
of  Lords;  but  the  threat  of  a  siniiiiir 
proceeding  se^  ured  tin'  passiifio  of 
the  lleform  Bill  liy  the  peers  in  is;i'2, 
and  has  undoubtedly  prevented  the 
defeat  of  other  salutary  measures. 
In  May,  1894,  a  similar  tlireat  secured 
the  pasHago  of  the  Civil  Mar  -iago  bill 
by  the  Hungarian  House  of  Sia"iiati  • , 
which  had  previously  rcjeetoii  it- 
(New  Yorli  Sun,  Oct.  6,  1895.) 


•] 


OlUfilX. 


465 


(iiciined  in  recent  j'cars  where  State  senates  have  witlistood 
stnmg  currents  of  public  opinion ;  ""  while  since  they  are  sniuUer 
tlicv  are  usually  more  easily  purchaseil  than  the  houses  of  iissein- 
lil\ .  The  Senate  of  the  United  States  alone  preserves  the  public 
iispt'ct,  and  lias  in  numerous  cases  done  public  service  by  its 
(icl'fiit  of  mischievous  measures,  pushed  through  the  House  of 
lUpiesentatives  by  waves  of  jjopular  excitement,  which  have  sul)- 
,sfi|iu'utly  sul)sided,  leaving  the  bills  without  further  support,'* 
wliilc  •nitil  recent  years  at  least  the  confidence  in  the  bencdcial 
•Ticts  of  the  institution  has  not  been  shaken.'"  The  reason 
I  tliis  lies  in  the  fact  that  tlie  Senate  represents  the  Federal  sys- 
ttii  in  the  Constitution,  and  that  faith  in  such  a  representation 
lias  Ihcu  a  habit  of  the  people  since  the  opening  of  the  Revolution, 
.so  that  the  custom  is  so  strong  that  it  would  require  a  great  shock 
fur  its  destruction."' 


luciuu- 
United 
in  full 

luive 

twolve 

liiiiuin, 

inlcT  to 

0  H'luse 

u  siiniliir 

,llj.'0  ot 

■»  ill  is;w, 
nti'il  tlie 
ineafiiri's- 
t  Bccuri'd 

iiiK'o  bill 
ia"iiati- , 

oetCLv   It. 

■) 


'■'  Till"  earlier  Stuto  Senntps  usu- 
ally represented  property,  more  es- 
(ii>(  iiilly  tliiin  tlio  lower  houses. 

!■'  See  infra,  §  KO. 

'■  See  infni,  §  80. 

'"  See  llaiiio,  Topular  Oovommpnt, 
Essay  III;  ami  again  Estiay  IV,  p. 
2'2'.l:  "  N'otlilii)?  but  an  historieal  prin- 
(•i|ile  can  )io  Bueeesrtfully  op|K)HPil  to 
tlic  piinelplu  of  making  all  public 
liiiwers  and  all  parliamentary  assem- 
lilii's  the  mere  retleet  ion  of  the  average 
(i|iiiiiciii  of  the  iiiiiltituile." 

Ill  ilreiit  Britain,  Pcuiugal,  Prua.sia, 
liiivMiia.  Hungary,  Saxony,  Baden 
iiml  WiirleinlxTg,  the  upper  ehanibers 
me  lomposed  ehielly  of  hereditary 
iiii'iiilier.s  or  those  appointed  for  life 
er  elected  to  represent  an  hereditary 
iliiss;  although  in  Portugal  anil  Ilun- 
g.iiv  a  few  members  seem  to  lie 
eliiiseii  by  a  method  of  eleetion  which 
iiiiiireetly  represents  the  people.  In 
(iiniiiiiny  members  of  the  upper  house 
are  iip|ii)inted  for  each  session  by  the 
g'lveriinients  of  the  members  of  the 
i'iii|iire.  In  most  of  the  other  coiiii- 
triis  and  tlie  British  colonies  members 
ot  the  upper  ehnmberb  are  appointed 


for  life  or  elected  for  a  term  longer 
than  theassembly,  eillier  immedinteiy 
or  Indirectly  liy  the  people;  with  In 
some  coiinlries  tlie  requirement  of  a 
property  i]ualillcation.  In  Italy  the 
senators  have  a  limited  choice  of  new 
memliers.  The  practice  in  New 
Zealand  and  .Japan  also  iiresenia  some 
pecidiarilies.  See  The  Parliaments 
of  the  World,  NinoteiMith  Century  for 
1894,  p.  708.)  .John  Stuart  Mill  was 
in  favor  of  a  single  chamber  with 
minority  representation;  but  con- 
sidered that  the  liest  sei'ond  chamber 
would  be  a  liody  of  men  who  had  held 
Important  otTlccs,  or  eni]iloynieiit8, 
legal,  political,  military  or  naval :   - 

"Of  all  principles  on  wliicli  a  wisely 
conservative  body,  destined  to  moder- 
ate and  regulate  democratic  ascen- 
dency, couhl  possibly  be  const  meted, 
the  liest  seems  to  bo  that  exempllflo<l 
in  the  Roman  Senate,  itself  the  most 
consistently  prudent  and  sagacious 
body  that  ever  admlnLstered  public 
affairs.  The  dellcien"ies  of  a  demo- 
cratic assemlily,  wliich  represents  the 
general  public,  are  tin-  deliciencles  of 
the  public  itself,  want  ot  special  train- 


4GG 


TllIC   SENATK. 


[CIIAI'.  XI. 


§  70.    Proceeding:!*  in  tlio  Federal  Convention  Concerniii(r  tlio 
Coniposition  of  tlie  Henate. 

Neiiily  all  tho  nieinhei's  of  the  Federal  ( 'oiivuiition  were  firmly 
convinced  of  tlie  neeessity  of  two  legislative  houses,  if  a  national 


luR  1111(1  Unowli'dgi'.  Tlio  approprliito 
corri'rlivo  ia  to  iissociiilo  with  It  a 
body  of  which  spivMiil  training  and 
knowlcilRO  Khould  be  tlin  charactcr- 
Istii'H  If  ono  HouHO  repiOHonts  poj)!!- 
lar  fci'liu)^,  the  other  Khduld  iei)rt<s(!nt 
personal  nicril,  tested  and  guaranteed 
by  ai-liial  iiulilic  Hervioe,  and  fortified 
by  ai'tiial  experience.  If  one  is  the 
Peopli''rt  (^handier,  the  other  ahoidd 
be  the  Chamber  of  Statesmen  —  a 
eoiimil  eoniposi'd  of  nil  living  public 
men  who  have  passi'd  through  any 
imporlant  politlenl  oHIeo  or  employ- 
ment. Sueh  a  chamber  would  bo 
lltted  for  much  more  than  to  bo  a 
merely  modeniting  body.  It  would 
not  lio  cxelusively  u  ehe('k,  but  also 
an  iinpi'lliug  force.  In  its  hands,  tho 
|)o\vcr  of  holding  the  peopb)  back 
woiil  1  b(>  vested  In  those  most  com- 
petent, arid  who  would  then  bo  most 
inclined  to  lead  1  hem  f(U'\vard  in  any 
rigid  coui'so.  The  council  to  whom 
tin!  task  would  be  intrusted  of  rec- 
tifying tho  people's  niistalces  would 
not  represent  a  class  believed  to  b> 
oppo-ed  to  their  interests,  but  would 
consist  of  till  ii' own  natural  leaders 
In  till"  path  of  progress.  No  mode  of 
couiiiosili(Ui  could  approach  to  this  in 
giving  weight  and  I'lTlcioucy  to  their 
fuMclionof  moderators.  It  would  bo 
impose  ibio  to  cry  down  a  body  always 
foreiuiist  in  iiroinoliug  improvonieiits 
as  ti  nuTe  obstructive  body,  what- 
ever amount  of  mischief  it  might 
obstruct. 

"  Wore  the  place  vacant  in  England 
for  such  a  Senate  ( I  need  scarcely  say 
that  this  is  a  nn-ro  hypothesis),  it 
might    be    composud  of   some   such 


elements  as  the  following:  All  who 
were  or  had  been  members  of  the 
Legislalivo  Commission  descrllicd  In 
a  former  chapter,  and  which  I  icfiani 
as  an  indispensable  ingredient  in 
a  well  constlli'ted  popular  guvcin- 
ment.  All  who  were  ov  had  been 
chief  justices,  or  heads  of  any  of  ilio 
:uiperior  courts  of  law  or  eiiuily.  All 
who  had  for  live  years  lllled  tin*  ulllco 
of  imisne  judge.  All  who  Inid  held 
for  two  years  any  cabinet  oOlcc;  Imt 
these  should  also  bo  eligilile  to  ilie 
House  of  Commons,  and,  if  clccicd 
members  of  it,  their  peerage  or  Hiiia- 
torialolllce  sliouhl  bo  held  iii^^uspeiise. 
The  condition  of  time  is  intiodiiKMl 
to  prevent  persons  from  being  n.iiin  il 
cabinet  inluistirs  merely  to  give  IImmu 
a  seat  in  tlie  Senate;  and  llie  poiioil 
of  two  years  Is  suggested,  that  tlm 
same  t(>rni  which  qualifies  tlieiii  for  a 
penshm  might  entitle  tliom  to  a  s  nii- 
torship.  Ail  who  had  lllled  llieotllco 
of  cominander-in-chii'f ;  and  all  who, 
having  commanded  an  army  or  a  lleet, 
had  been  thanked  by  Parliainent  for 
military  or  naval  succo-iscs.  .VII 
governors-general  of  India  or  Hiitisli 
America,  and  all  wlio  had  held  fer 
ten  yefirs  any  colonial  governoisliip''. 
The  permanent  civil  service  slmulil 
also  bo  representeil ;  all  should  be 
senators  who  had  lllled,  during  ten 
years,  the  important  olUces  of  iiiider- 
secretary  to  tho  Treasury,  peniiiiiicnt 
under-secret ary  of  State,  or  any  others 
equally  high  and  ri'spiuisible.  Tlift 
funeth  ns  conferring  tho  senaloiiiil 
dignity  should  be  limited  to  these  of 
a  legal,  political,  or  military  or  imvid 
character.     Seieutllloaud  llleraiy  enil- 


§70.] 


PUOCEEDING8  IN  CONVENTION. 


4«7 


government  was  to  be  established.  On  the  third  active  day  of 
till  ir  .session  the  resolution,  — 

'•  •  lliat  flic  national  le<i;i»laturc  oii<Tht  to  consist  of  two  branches,'  was 
iiLTit'i'd  to  without  debate  or  dissent,  except  that  of  Pennsylvania, 
fiivcii  ])robably  out  of  complaisance  to  Dr.  Frnni\Iin,  who  was  under- 
8l<K>(l  to  bo  partial  to  a  single  house  of  le^^islutlou."  ' 

I  pin  ii  subsequent  vote.  New  York,  New  Jonscy  and  Delaware 
Vdicii  ugiiin.st  the  ])roj)osition ;  Pennsylvania  joined  the  majority 
of .  fven  Status,  and  Maryland  was  divided ;2  but  the  real  dispute 
at  tint  time  was  wlietiier  the  United  States  should  contin.ie  as  a 
ednfL'ileracy  or  be  made  a  nation  ;  and  the  minority  were  iiiHuenei'd 
by  the  desire  of  accomplishing  the  former  rather  than  by  a  con- 
viitiou  of  the  advantages  of  a  single  chamber  in  a  initimial 
i.'dvcrnment.  Iiandoljiirs  resolutions  proposed  also  that  the  second 
luanili  be  elected  by  the  lirst  out  of  nominations  by  the  State 


iii'iuo  aro  too  iiidollnito  ami  (lis])ut- 
ulili':  tlicy  imi  l.v  a  power  of  scli'ctioii, 
whoicii^i  t  lio  other  i|iiulilli'iitloiis  speak 
fnr  llu'iiiselvoH;  if  tlio  writings  liy 
wliiili  i-cpulation  Ims  Ihh-u  gaiiioil  aro 
iiHi  iiiiiiiH'lid  Willi  politics,  tliny  are 
nil  I'viil.'iuM;  of  llie  spec'ial  (inalilies 
ri'.|iilie(l,  wliile  if  political  tliey  would 
iilldw  successive  iiiiiiistrb'8  to  delu^d 
111  •  lloiisc  with  piirty  tools.  '  (liepn?. 
Gciiiative  fiovcniaieiit,  ch.  xiii.)  It 
iiiiiy  lie  doulih'd,  wliellier  u  body 
i(iiiilio-.c(l  of  aj^ed  and  Konty  men  on 
till'  retired  list  wliicli  would  be  used 
lis  11.  sli(>lf  upon  which  to  lay  politi- 
tiiiiis  wlio  had  outlived  tlielr  useful- 
ness or  had  teiiiponn-ily  lost  their 
seats  in  the  lower  Ijnise,  could  bo 
expect eil  to  favor  any  novel  measures 
(if  leroiiii  or  to  have  any  elTect  n<it 
iifii  reicliouarycliariictor.  See  Wool- 
soy,  I'liliiical  Si'ieiice,  vol.  ii,  p.  31.5. 

"Wo  may  iiiia.niiie  very  easily  in  a 
niciiiieiii's  rellcctioii  what  would  have 
liiV'M  the  condition  of  this  country  at 
this  nioinent  had  the  Senate  of  tho 
Viiiied  Stales  been  constituted  on  a 
dilTereiit  principle.     II  tho  size   and 


populations  of  tho  several  States  had 
been  the  tost  of  representation  in  the 
Senate  of  tho  United  Stales,  I  think 
it  is  not  too  much  to  say  in  Buber 
minded  truth  that  this  IlepuMic  would 
not  have  oiidurcd  until  now.  Many 
and  many  liavo  bi-en  tlie  times  when, 
if  tho  ri;;ht  of  tho  Senators  of  each 
Sluto  to  resist  and  defeat  the  current 
of  popular  jiassion  and  prejudico 
which  arises  sometimes  in  tho  action 
of  tho  popular  body,  tlio  IIou-o  of 
Representatives,  had  failed  to  exert 
it.self  as  it  would  have  failed  if  tho 
Sonato  had  boon  constituted  as  tlio 
national  House  of  Reprosoiitaliv.  s, 
discord  and  revolution  would  almost 
certainly  have  caused  the  ilismember- 
meiit  of  the  Union."  Senatcr  (leorKo 
F.  Eilniunds,  in  reply  to  tlio  toast, 
"The  United  Stales  Senatois  of  Ver- 
mont," nttiio  reunion  of  llio  survivors 
of  tho  memliersof  tho  Vi'rmont  Le^'is- 
lalures  at  Sloiitpelier,  Vermout,  ro- 
priuted  in  Tho  Now  York  Times. 

§  7(i.  '  Madison  Tapers,  Elliot's  De- 
bates, '2d  cd.,  vol.  V,  p.  135. 

•i  Ibid.,  p.  223. 


•168 


Tin;    SKNATK. 


[('ii.u'.  xr. 


Ififisliitures,  Imt  this  was  ilefi'iitiMl  liy  tlio  votes  of  seven  States  to 
tliree.^  In  llic  debate  upon  tlie  (lUestiim  wlietlier  the  lower  house 
ahould  Ije  elected  hy  the  State  legishitiues,  — 

"Mr.  Dickinson  considered  it  essential  that  one  brauch  of  the  lojfis- 
latiire  slionid  ho  drawn  iininediateiy  from  the  peopli',  and  expedient  that 
the  otiier  siiould  lie  ciiosen  liy  the  li'gislatnres  of  tlie  Stales.  Tliis 
cond)ination  of  the  State  governments  with  the  national  government 
was  as  politic  as  it  was  iintivoidalile.  In  the  forn)ation  of  tiio  Senate, 
we  ought  to  carry  it  through  sueli  a  relining  process  as  will  assimilate  it, 
as  nearly  as  may  be,  to  the  House  of  Lords  in  Kngland."* 

After  the  defeiit  of  the  motion  for  an  election  of  the  lower 
liousc  by  the  State  legislatures,  in  which  he  voted  with  the  major- 
ity, he  moved,'"  — 

"  that  the  members  of  the  second  branch  ought  to  be  chosen  liy  the  in- 
dividual legislatures."' 

"  .Mr.  Dickinson  had  two  reasons  for  Ids  motion, —  first,  because  the 
sense  of  the  States  would  be  more  easily  collected  through  their  goveru- 
ments  than  from  the  jjcoplc  at  large;  secondly,  because  ho  wislied  tlie 
Senate  to  consist  of  the  most  distinguished  characters,  distinguished  i  ,r 
their  rank  in  life  and  their  weight  of  property,  and  bearing  as  strong  a 
likeness  to  tlie  British  House  of  Lords  as  possible  ;  and  he  thought  such 
characters  more  likely  to  be  selected  by  the  State  legislatures  than  iu 
any  other  mode."' 

Koger  Sherman  seconded  the  motion  that,  it  seems  not  un- 
likely, was  an  entering  wedge  for  the  eomiironnse  that  he  ,sub- 
.se(iiiently  suggested.'  The  only  strong  opposition  was  from  Wil- 
son, who  proposed  instead,  — 

"an  election  by  the  people,  iu  large  districts,  which  would  be  most 
likely  to  ol)tain  men  of  intelligence  and  uprightness ;  subdividing  the 
districts  only  for  the  accommodation  of  voters."" 

"  Mr.  (ierry  insisted  tiiat  tlie  commercial  and  moneyed  interest  would 
be  more  secure  in  the  hands  of  the  State  legislatures  than  of  the  people 
at  large."  " 


« Ibid.,  p.  i:)9. 

<Iliid.,  p.  ira. 

«II)id.,  1).  Kit.     Supra,  §51. 

«  Ibid.,  i>.  ICC. 

'  Ibid. 

>  See  ibid.,  p.  240,  note. 


9  Ibid.,  p.  1G9.  Miidli^on  siippiirtwl 
Wilson,  liiit  would  not  curry  tlio  (Icli"- 
Kation  of  his  Statu.  Ibid.,  pp.  1<J9- 
170. 

10  Ibid.,  p.  169. 


§  "'■'•] 


PltOCEKDINCS    IN    CONVENTION. 


469 


All  the  States  but  PcniiBylvania,  however,  voted  against  tlio 
|iiistiM)iiemeiit  of  Dickinson's  motion  to  take  np  that  of  Wilson ;  and 
ihi'  fdnner  was  then  uniininiously  adopted."  I'lion  a  suliseciuent 
vote  it  was  ai^aiu  carried  l)y  nine  States  against  two,  Pennsylvania 
and  Virginia  being  in  the  minority.'^ 

"Mr.  Head  proposed,  ' tiiat  the  Senate  should  be  appoiuted  by  the 
I'xi'C'iitive  magistrate,  out  of  a  proper  number  of  persons  to  be  uomiuated 
by  tiie  indivicbml  legislatures.'  His  propositiou  was  not  seconded,  nor 
supported."  '* 

The  length  of  the  term  of  the  Senate  was  designed  to  give  an 
opportunity  for  delil)eration  in  legislation  to  i)roteet  the  people 
against  themselves."     Some  of  the  St;ite  senates  sat  for  two,  others 


"  Ii>id.,  p.  170. 

1-  11)1(1.,  p.  240. 

"  Iliid.,  p.  1(17.  Oouverneur  Morris 
(ilso  wiHlicd  to  havo  tho  soiiiilors  ap- 
poliiti'd  l)y  the  oxwutlvo.  Ihid.,  p.  272. 

'•  "  Mr.  Madison.  In  order  to  judno 
of  till-  form  to  bo  glvt-n  to  this  in- 
glllullon,  It  win  bo  propor  to  tako  a 
view  of  tho  ends  to  bo  served  by  it. 
TlioBO  were  —  llrst,  to  protect  tho 
pco|il(i  nualnst  their  rulers;  secondly, 
to  iirot(H't  tho  people  uKainst  the  tran- 
isl(^nt  Inipressione  into  which  they 
tliciiisolves  nilKht  be  led.  A  people 
dclilicintlnR  in  a  tomporato  moment, 
mid  with  tho  experionco  of  other  na- 
tions bi'fore  them,  on  tho  plan  of 
(jovcrnnu'ut  likely  to  secure  their 
hiipiilnesH,  would  (Irst  bo  aware,  that 
those  charged  with  tho  public  happi- 
ness might  betray  their  trust.  An 
obvious  ]>rocaut  ion  against  this  danger 
would  be,  to  divide  the  trust  betW(!ou 
(lllTerent  bolies  of  men,  who  might 
watch  and  choclc  each  other.  In  this 
tiiey  would  bo  governed  by  the  sam 
l>nidenco  which  has  prevailed  In  oi- 
t-Miiiziiig  tho  subordinate  departments 
(if  (,'iivorniuent,  where  all  business  11a- 
bli^  to  abuses  is  made  to  pass  through 
sepanite  hands,  the  one  being  a  cheek 
(in  the  other.  It  would  next  occur  to 
such  a  people,  that  they  themselves 


were  liable  to  temporary  errors, 
through  want  of  Information  as  to 
their  true  interests;  and  that  men 
chosflu  for  a  short  term,  and  employed 
but  a  small  portion  of  that  in  public 
afTairs,  might  err  from  the  same  cause. 
This  rellection  would  uaturally  sug- 
gest, that  the  govermneut  bo  so  con- 
stituted as  that  ono  of  its  branches 
udglit  have  au  opportunity  of  acquir- 
ing a  comp(!tont  kuowbHlgo  of  tho 
public  Interests.  Another  reflection 
e(puilly  becoming  a  people  on  such 
an  occasion,  would  be,  that  they  tliem- 
selves,  as  well  as  a  numerous  body 
of  represenUitlves,  were  liable  to  err, 
also,  from  llckieuess  and  passion.  A 
necessary  fence  agaiiist  this  danger 
would  be,  to  select  a  portion  of  en- 
lighlen(?d  citizens,  whose  limited 
number,  and  lirmuess,  might  season- 
al)ly  intoriioso  against  Impetuous 
counsels.  It  ought,  finally,  to  occur 
to  a  piHjpie  deliberating  on  a  govern- 
ment for  themselves,  that,  asdifT('rent 
interests  ncc(>s8arlly  r("sult  from  the 
liberty  meant  to  be  secured,  tho  major 
interest  might,  under  suddeu  im- 
pulses, be  tempted  to  commit  injus- 
tice on  the  minority.  In  all  civilized 
countries  tho  people  fall  into  difTerent 
classes,  having  a  real  or  supposed 
difference  of  interests.    There  will  ba 


470 


THE   8KNATE. 


[c'llAl', 


XI. 


for  tlirt!0,  otliera  aj^.iiii  four,  and  thit  of  Maryland  for  (ivo  yt-iiis.''' 
Tlio  last  had  the  lij^ht  to  fill  vacancies  in  its  own  body.'"  'llio 
tei'ni  of  six  years  was  chosen  as  a  ooinproniisc  l)etween  niiii'  anil 
four,  Tlifio  was  a  tic  vote  upon  tlie  (luestioii  to  afjrcc  to  live.'" 
Four  menihers,  ono  of  whom  wius  Alexander  Hamilton,  proposed 
that  the  senators  should  hold  their  offices  for  life,  unless  removed 
hy  inipeaehment.'' 


<'roil!tor8  nud  debtors;  farmprs,  nior- 
t'hriii'  anil  iiiiifiiifactiin-r'*.  Tlioro 
win  i.c,  piirlk'uliirly,  tlio  <listincl!oii 
of  H.'ii  'itid  poor.  It  iviis  tnio,  hh  had 
bcj'i  o!)Borvi)<l  (by  Mr.  Piiu'knoy), 
wo  ;md  not  niiiong  us  tlioso  hi'i'odUary 
distiiictidiis  of  rank  wliicli  wore  a 
greet  Boiupo  of  tlio  conto.'^ts  In  tlio 
auclcnt  Rovernnicnts,  ns  well  ns  tlio 
modern  Hliites,  of  Europe;  nor  tlioHo 
c.\tr<'ineH  of  wealth  or  jKivorly  whieli 
cluiractorlzo  the  latter.  We  cannot, 
ho«<>ver,  bo  rei^anled,  even  at  this 
time,  as  ono  homojjeneoim  muss,  in 
whleh  PverythiM«  that  affeets  ,i  ])art 
will  affect  in  tlio  same  miniier  tlio 
whole.  In  framing  a  system  wliich 
wo  wish  to  last  for  hkos,  wo  Bliould 
not  lose  slglit  of  the  ehauses  whicli 
ago  will  produce.  An  Increase  of 
population  will  of  necessity  liicroaBo 
the  pioportion  of  those  who  will  labor 
under  all  the  hardships  of  life,  and 
secretly  sigh  for  a  more  eiiiial  distri- 
bution of  its  blessings.  Those  may 
in  time  outnumber  those  who  aro 
placed  above  the  feelings  of  Imligonco. 
Acc:iidlng  to  tlio  e(|iial  laws  of  suf- 
frage, the  power  will  slide  into  tho 
hands  of  tho  former.  No  agrarian 
attempts  have  yet  been  made  in  this 
couiilry;  but  symptoms  of  a  levelling 
spirit,  as  wo  have  understood,  have 
suITlelpntly  appeared,  in  a  certain 
quarter,  to  give  notice  of  tho  future 
danger.  How  is  this  danger  to  be 
guarded  against,  on  the  republican 
principles;  how  Is  the  danger.  In  all 
cases  of  interested  coalitions,  to 
oppress  the  minority,  to  be  guarded 


against  ?  Among  other  means,  by  tins 
ostablishmeiitof  a  liddy.  In  tliegovcin- 
meiit,  HuHlclently  respeetiible  for  lis 
wisdom  and  virtue  to  aid,  on  such 
emergencies,  the  prc'iionilerance  of 
justice,  by  throwing  its  weiglit  into 
tliat  scale.  Kui'h  being  the  olijecis  of 
tho  second  branch  In  the  pioiioscd 
government,  he  tlioiight  a  consider- 
able duration  ouglit  to  bo  given  to  il. 
He  did  not  conceive  tliat  tlio  teria  cf 
nine  years  could  tlireaten  any  real 
danger;  but,  in  pursuing  his  ]iiirli('u- 
lar  ideas  on  the  siilijeet,  he  sliiinlcl 
reiiuiro  that  tlie  long  t(>riii  allowed  to 
the  Bi'cond  branch  slioulii  not  coni- 
meiice  till  such  a  period  of  life  as 
would  render  a  perpetual  dlsiiiiaiili- 
catlon  to  tho  ri'-elected,  ill  lie  imon- 
vonleut,  either  in  public  or  jirivate 
view.  He  observed,  that,  as  it  was 
more  than  probable  wo  were  now 
illgesting  a  plan  wliidi,  in  Its  opera- 
tion, would  decide  forever  tiio  fate  of 
republican  government,  wo  ouglit, 
not  only  to  provide  every  guard  to 
liberty  that  its  preservation  could  re- 
quire, but  be  equally  careful  to  supply 
tho  defects  which  our  own  experience 
had  particularly  pointed  out."  (Madi- 
son Tapers,  Elliot's  Deliates,  2il  eil., 
vol.  V,  lip.  242-21.'?.)     Sei'  supra,  §  75. 

'*  Tho  Federalist,  numbers  xx,\ix, 
Ixiii. 

1'  Ibid. 

"  Madison  Papers,  Elliot's  Rebates, 
2d  ed.,  vol.  v,  pp.  241-215. 

'8  The  olliers  were  Bead,  Robert 
Morris,  and  Gouvernour  Morris  (ibid., 
pp.  241,  271,  585). 


§  ''*••] 


I'KOCKMUNGS    IN    CONVKNTUlN. 


471 


'I'lu;  provisicill  for  the  I'lccdnli  uf  iiifliilH'ls  Ir,  Idtltinii  wilH 
iiddiiU'd  uiiiiniiiiouHly  iit  tlic  HU^r^.'osticni  nl'  rioiliuin  ami  l!:iiiili)l|ili.''-' 
I'riiii'.s  Friiiiu;  of  (ioveiiimt'iil  for  IV'iiiisylviiiii;i  liiid  iiit)viili'<l 
ihal  ill  tlie  Council  oiuf-tiiiid  of  tlio  iiummIhts  slioiiid  jjc-  I'liictucl 
I  \ti\  year,  and  at  tho  tiniu  of  tlio  ConvtMition  tl.  ■  i  upor  liouseH  of 
New  York,  Virjirinia  and  Delaware  as  well  as  of  t'l  lirst  named 
St:itt'  were  (illed  in  a  similar  manner.-"  The  idea  is  said  to  have 
liicii  iK>rrowed  from  the  senates  of  the  cities  '<u  tiie  Netherlands,''* 
will)  liiid  taken  it  from  Venice.  The  fjri-.m'  tn  eaeh  JState  of  an 
("Mi;d  ri,Lcht  of  suffrajfe  in  the  Senate  wa;  the  result  of  tlu!  eon- 
t;  ivt'i-sy  lietween  the  large  and  small  Slates,  v  liieh  neiiriy  dis- 
nipied  the  Convention  and  finall}-  resulted  in  the  Connecti'Ut 
(niii[ir(>mise,  sugj^ested  l)y  Uoger  Sherman,  as  previously  de- 
si  riiK'd.22 

l-iiiher  ^lartin  of  Maryland  wished  that  the  Senate  should  vote 
liy  States,  anil  (iouverneur  Morris  of  Peiuisylvania  that  the  inunber 
fioMi  each  State  should  he  three;  hut  neither  was  ahle  to  eavy 
iiKire  than  the  menihei-s  of  liis  own  delegation  in  favor  of  hia 
virws.^''  The  piovision  for  the  temporary  siij)|ily  of  vaeaneies  in 
the  Senate  hy  the  State  executives  was  inserted  by  the  Committee 
el'  1  )etail  in  the  f  illowing  form  :  — 

'■  Vncnncies  may  be  supplied  by  the  executive  until  the  next  meeting 

(if  tlie  leijishiture.""* 

rpon  the  consideration  of  their  report, — 

"  Mr.  ^ladisoM,  in  order  to  prevent  doubts  whether  resignations  could 
liv  iniulfi  \>y  senators,  or  whetber  tlicy  could  refuse  to  accept,  niov.'d  to 
strike  out  the  words  after  'vacancies,'  and  insert  the  words  '  happening 
liy  refusals  to  accept,  resignations,  or  otherwise,  may  be  supplied  by 
till'  legislature  of  the  State  in  the  representation  of  which  such  vacancies 
sliiill  happen,  or  by  the  executive  thereof  until  the  next  meeting  of  the 
k'^'i.slature.'  Jlr.  (Joiivernenr  Morris.  'I'liis  is  absolutely  necessary; 
otherwise,  as  members  chosen  into  the  Senate  are  disqtialilled  from  be- 


1'  Iliid.,  p.  241. 

■^  I'oare's  rharlers  nntl  Constitu- 
tions, vol.  ii,  pp.  ir.20,  l:i;i4,  lOlO;  vol. 
1,  |i.  274 ;  Slovens,  Sources  of  tlie  Con- 
t^tiliilion,  p.  78;  sui>ra,  §4'.),  note  9. 

-'  Canipt)ell,  Tho  Puritan  in  Hol- 
laud,   Kiiglaud  und   Auiurica,  vol.  ii, 


p.  423 ;  Stevens,  Sources  of  the  Con- 
stitution, I).  78. 

s^  Siipri,  §J  48,  64. 

'■"  Madison  Pnpers,  Elliot's  Debates, 
2d  ed.,  vol.  v,  pi..  356-357. 

a*  Ibid.,  p.  377. 


472 


THE   SENATE. 


[CHAl'.  XI. 


ing  appointed  to  any  office,  by  Section  9,  of  this  article,  it  will  be  in 
the  power  of  the  legislature,  by  appointing  a  man  a  Senator  against  his 
consent,  to  deprive  the  United  St.ates  of  hid  services. 

"  The  motion  of  Mr.  Madison  was  agreed  to  iwm.  con."^ 

The  other  words  of  this  chiuse  seem  to  have  heen  inserted  In-  tlie 
Committee  of  Style  without  dlHcussion.  The  Convontioii  eoiisid- 
ered  mid  tlisiipproved  suggestions  that  senatoi-s  must  have  a  prop- 
erty qualification,^  that  like  memliui's  of  the  House  of  J^ords  they 
should  have  tlie  right  to  enter  their  dissents,  in  all  cases,  upon  the 
journal,^"  that  they  should  choose  the  President  in  ciuse  of  a  fail- 
ure of  a  choice  hy  the  electors,  ^  that  their  consent  should  he 
required  to  pardons,'®  and  that  they  should  have  the  power  to 
declare  war  ^  and  decide  controversies  between  the  States.'"  The 
proceedings  iis  to  the  presidency  of  the  Senate,  impeachments,  and 
the  power  of  that  body  to  concur  in  treaties  and  approve  appoint- 
ments will  be  dcscril)cd  latcr.^  The  latter  were  suggested  hy 
the  powers  of  the  colonial  councils.''^ 


§77.    Senatorial  Eloetloiis. 

The  Constitution  simply  directs  tliat  the  senators  from  each 
State  shall  be  "  chosen  by  the  I^egislature  thereof,"  '  witliout  pre- 
scribing the  manner  of  the  choice.  A  subsequent  provision  is 
that  — 

"Tlie  Times,  Places,  and  IManner  of  holding  Fllections  for  Spntitors 
and  Representatives,  shall  be  prescribed  in  each  State  bj'  the  Legishitiiie 
tliereof ;  but  the  Congress  may  at  any  time  by  Law  make  or  alter  uiich 
Kegulations,  except  as  to  the  Places  of  chasing  Senators."'^ 

For  nearly  one  hundred  years  after  the  adoption  of  the  Consti- 
tution Congress  left  the  matter  to  the  regulation  of  the  scveial 
States.  It  was  settled  by  uniform  ac([uiescence  that  the  govoMiior 
of  a  State,  although  by  the  Constitution  liis  assent  was  necessary 


26  Ibid.,  p.  396. 

26  Ibid.,  p.  217.     Supra,  §  CI. 

"  Ibid.,  pp.  407-40S;  see  infra. 

SB  Ibid.,  pp.  r.07-513. 

»»  Il)id.,  p.  480. 

»«  Il)id.,  pp.  lUl,  438. 

"  Ibid.,  p.  379. 


»■'  See  ii'fra,  §§  82,  88,  and  uinler 
the  licnd  of  tlic  exociilivi"  power. 

*'  Infra,  §  80. 

§  77.  '  C'oiiBtltution,  Article  I,  Sec- 
tion 3. 

2  ConstHution,  Articlo  I,  Scctiou  4, 
see  infra,  Ch.  XIV. 


i"-] 


SENATORIAL   ELECTIONS. 


473 


to  tlio  unactment  of  laws,  was  not  a  part  of  the  legislature  thereof 
wiicii  a  senator  was  to  be  chosen.''  It  was  decided  hy  the  Senate 
tliiit  the  two  houses  of  the  legislature  might,  by  a  joint  resolution 
(ii-  lule  adopted  by  both  of  them,  without  the  consent  of  the 
f,Mvi'rnor,  provide  for  the  manner  in  which  a  senatorial  election 
siiiiuld  take  place;  anil  that  the  Stiite  constitution  cannot  limit 
tlic  [lowers  of  the  legislature  in  that  respect.*  It  seems  to  have 
liicii  the  prevailing  opinion  shortly  after  the  adoption  of  the  (Con- 
stitution that  a  seuatoriid  election  nuist  take  place  by  the  joint 
lutiiiu  of  both  houses  of  the  Icgishiture  acting  separately.''  The 
iiicdiivcnienccs  of  tins  metliod  were,  however,  soon  obvious,  and 
tiic  practice  was  adojitcil  in  several  States  of  electing  senator's 
ill  J.  iiit  convention  of  the  two  legislative  houses  in  case  the  houses 
ill  ting  separately  had  failed  to  make  a  choice.''     This  method  was 


» story  on  the  Coustitution,  5th 
Oil.,  §70."). 

<  YiiliM'  V.  Mallory,  Tafl's  Soiiato 
Eli'iiiin  Cases,  continued  liy  Furlior, 
jip.  1-27,  129.  Ill  that  I'liso  tho  report 
of  tlie  Coiiinilttee  on  Prlvih'Hcs  and 
Kleilions,  whieh  was  presented  by  Mr. 
lirlwlil.Bald,  at  p.  l'2i) :  "Tho  no.xt  oli- 
ji'i'iicm  is  that  it  has  not  thi)  forms  of 
law  usual  in  legishillon,  tieeauso  it  is 
not  signed  by  the  ofllcers  of  each 
liipiise  or  approved  liy  tho  Kovernor. 
Il  is  a  sullleieiit  reply  to  stale  that 
till' ConstitiM Ion  doi's  not  ro(|uire  tlio 
li'ilisliitnro  to  reijnhite  Hie  manner  of 
clfi'tion  liy  law;  it  may  be  by  resolii- 
tl'in,  either  joint  or  several,  or  in  any 
oilier  method  whieh  coiniiiaiids  tho 
i^'icementof  both  houses  of  tlie  legis- 
la  ure.  Tho  form  of  action  bein^  dis- 
ir.  lionaiy  and  tho  substance  rinht, 
tne  o'.ijection  liecomes  iiiinialerial. 
T'lc  will  of  tlio  two  housi's.  when 
arcrtalned  liy  vote  in  tlieir  respeclivo 
olmi'ibers,  is  for  this  purpose  a  sulll- 
ci.'ril  hiw,  because  they  alone  are  eiii- 
lioHcred  to  prescribe  tho  manner  of 
oliniisiiiK  in  such  mode  or  by  such 
Mil  IMS  as  they  please.  On  this  iioint 
aS;iito  Conslilulion  can  neither  lon- 
tinl   nor  modify  tliiit  of  tho  United 


States,  for  the  latter  is  the  supremo 
law."  See  also  Lucas  r.  Faulkner, 
ibid.,  p.  020,  ,iifra.  note  11,  and  Oiiin- 
ions  of  Ju.stiees,  4,")  N.  JL,  r>',(5 ;  Opin- 
ions of  ,Tuil).'es,  37  Vt.,G(l.'i.  Supra, 
§  55,  over  note  (>. 

"  Kent's  Commentaries,  vol.  i,  p. 
22(1 ;  Tho  Federal  Farmer,  Letter  12. 
This  was  the  cont  eutioii  of  thiv  Federal- 
ists of  New  York  at  Hk!  llrst  senatorial 
election  in  that  Stale,  when  they  liad 
n  majorily  in  the  Si.iie  senate,  and 
their  political  opponents  a  nuijority 
in  the  lower  house  and  in  tho  joint 
assembly.  They  refused  couseiinently 
to  a^reo  to  an  election  by  a  joint  ns- 
senibly  aft  •  didanrcement  bciwr.en 
tho  two  houses,  and  proposed  that 
eai'h  house  sliould  then  be  rei|uired 
1o  chooso  Olio  of  tho  two  candidales 
previously  chosen  by  the  other.  Tho 
asseiubiy  refused  to  aHiee  to  this,  and 
consci|ueii11y  New  York  was  not  rep- 
resented in  the  Si'iiate  at  tho  llrst  ses- 
sion of  th("  First  T'oiiKrcss  (Mcllaster, 
The  Political  Depravity  of  the  Fallieis. 
Atlantic  Monthly,  vol.  l.w,  jiii.  628- 
C2!)). 

'■  Keul's  Coiiiineiitaries,  vol.  1,  pp. 
2211;  Slory  on  the  Constitution,  5lh 
ed.,  §705. 


474 


THE   SENATK. 


[CIIAl'.  XI. 


approved  hv  tho  Senate,  which  recognized  an  election  by  a  niajcirity 
of  the  members  of  both  liouses  in  joint  convention  as  sulliciiiit, 
altliongh  tliere  was  no  concurrent  majority  by  each  house  in  I'.iviir 
of  the  successful  candidate.^  It  was,  liowever,  hehl  that  it  was 
necessary  tliat  a  quorum  of  each  liouse  should  be  present  rtheii 
the  candidate  was  elected ;  since  otherwise  it  could  not  be  saiil 
that  he  Mas  elected  by  the  legislature.'  The  matter  was  settKd 
by  Congress  in  1806,  by  the  passage  of  an  act  for  the  regulation 
of  senatorial  elections  as  follows:  — 

"The  legislature  of  eacli  State  which  is  chosen  next  preceding  the 
expiration  of  tiie  time  for  which  any  Senator  was  elected  to  ropiosont 
such  State  in  ("ongresa  shall,  on  the  second  Tuesday  after  the  mci'liii!; 
and  organization  tiiereof,  proceed  to  elect  a  Senator  in  Congress.  Sucli 
election  shall  be  conducted  in  the  following  manner :  Each  house  shall 
oi)euly,  l)y  a  viva-voce  vote  of  eaeii  member  present,  name  one  pi'irfon 
or  Senator  in  Congress  from  such  State,  and  the  name  of  the  piTsoa 
voted  for,  who  receives  a  majority  of  the  whole  number  of  votes  cast  in 
each  house,  siiall  be  entered  on  the  journal  of  that  house  by  tlie  elcili 


'  Simon  Cameron's  Case,  Tafl's 
SciiaUi  Klcrtion  Cases,  coutiuuod  by 
Furhcr,  i>.  108. 

8  Ca-rf  (if  James  Harlan,  IH.'iT,  Taft's 
Scnati'  El«'<-tion  Cnncs,  contiiiuod  by 
FurliiT,  ji.  llt'J;  but  soo  tlio  otsi'  of 
Fltcli  ami  li^^'ht,  1S157,  Ibid.,  p.  148. 
Ill  Harlan's  case,  K.'nalor  Bayard  of 
I)c<lii\vai'c'sai(l ;  'On  tlilsstalnof  facie, 
tho  (lUUJrtion  which  I  supposo  (o  arise 
Is,  wlictlior  'till'  IcKislatiiro'  of  a 
State,  under  tho  InufjuaKo  of  tho  Fed- 
eral CoiiHtitution  dolcKatinn  to  tho 
li".jislatiirc  tho  liKlit  to  clod  Senators 
of  llio  United  States,  is  to  bi>  taken  to 
mean  tlio  individual  members  of  tho 
li'Kislatiiro  or  the  body  or  bodies  of 
wliich  tho  li'Kislaturo  is  composed.  I 
Bupiioso  tho  term  as  used  in  tlio  Con- 
Blitiition  nieaus  tlio' bodies  of  which 
till)  leiti^latiire  is  composed.  Tho 
honoiable  Senator  from  Georgia,  if  I 
npprociato  his  mnumeiit,  insists  that 
the  iiower  beiiiK  delegatod  to  the  lejj- 
Islaturo  is  vested  in  the  members  of 
the  lej^lslaturo,  and  that  whonovor  a 


majority  of  tho  raembors  of  the  wiiele 
logisluturo  under  a  law  such  as  tliat 
existing  in  Iowa  vote  for  a  man  lie  is 
elected,  though  one  of  tho  co-onllnato 
branches  of  that  legislature  may  imt 
vote  for  him,  and  may,  as  n  boily,  re- 
fuse to  go  into  an  olection.  Sii',  I  liolil 
it  to  bo  a  princiiilo  of  law  which  lias, 
I  think,  no  exception,  that  where  two 
Integral  bodies  are  authorized  to  do 
an  act.  It  cannot  bo  done  without  tlio 
consent  of  those  two  Integral  liodios. 
They  must  both  bo  present  and  act  in 
tho  matter  or  there  can  bo  no  valiiliiy 
in  thi!  act  done.  This  is  a  uiiiviiMil 
law.  I  can  call  to  mind  no  casewle'in 
a  contrary  principle  prevails,  whether 
rotating  to  legislative  action  or  cnr- 
porale  action.  Indeed,  in  rerenni'O 
to  corporations,  it  has  been  deciiled 
over  and  over  again  that  where  tliero 
are  two  Integral  bodies  who  must  ceii- 
our  In  an  act  they  must  both  be  pres- 
ent and  act  upon  tho  matter  as  bodies, 
not  as  Individuals." 


SENATOltlAL   ELKCTIONS. 


475 


(11'  srori'tary  thereof;  or  if  either  liouse  fails  to  <:ive  sticli  niajorily  to 
!iny  person  on  that  day,  thi?  faet  sliall  l)e  entered  on  tiie  jo'.irnai.  At 
twelve  o'clock  meridian  of  Ihu  <lay  following  that  on  which  inoeeodiiijis 
;ui'  re(iuired  to  take  plaee  aH  aforesaid,  the  niendiers  of  the  two  iioiises 
f.li:dl  convene  in  joint  assend)ly,  and  the  jonrnalof  each  house  shall  then 
lie  n';id,  and  if  the  same  person  has  received  a  majority  of  all  the  votes 
ill  eiieli  house,  he  shall  be  declared  duly  elected  Senator.  l>ut  if  the 
siuiie  person  has  not  received  a  majority  of  the  votes  in  eaeh  house, 
(ir  if  either  house  lias  failed  to  take  proceedings  as  reejuired  liy  this 
sociiou,  the  joint  assembly  shall  then  proceed  to  choose,  by  a  viva-voce 
viite  of  each  member  present,  a  person  for  Senator,  and  the  person  who 
ivci  Ives  a  majority  of  all  the  votes  of  the  joint  assembly,  p.  majority  of 
:ill  the  members  elected  to  both  houses  being  present  and  voting, 
sliall  be  declared  duly  elected.  If  no  person  receives  such  majority  on 
the  liist  day,  the  joint  nssendily  shall  meet  at  twelve  o'clock  meridian  of 
e;ieli  succeeding  day  during  the  session  of  the  legislature,  and  shall  take 
Kt  least  one  vote,  until  a  Senator  is  elected.  Whenever  on  the  meeting 
of  the  legislature  of  any  State  a  vacancy  exists  in  the  representation  of 
Muli  Stale  in  the  Senate,  the  legislature  shall  proceeii,  on  the  second 
Tuesday  after  meeting  and  organization,  to  elect  a  person  to  till  such 
v;ie:Micy,  in  the  maimer  prescribed  in  the  preceding  section  for  the  elec- 
tiiiii  of  a  Senator  for  a  lull  term.  Whenever  during  the  session  of  the 
leirislatMre  of  any  State  a  vacancy  occurs  in  the  representation  of  such 
Stiite  in  the  Semite,  similar  proceedings  to  (ill  such  vacancy  shall  bo 
liMil  on  the  second  Tuesday  after  the  legislatu''e  has  organized  and  has 
iKitiee  of  such  vacancy.  It  shall  be  the  duty  of  the  executive  of  the 
Siiile  from  which  any  Senator  has  been  chosen  to  certify  his  election, 
miller  the  seal  of  the  State,  to  the  President  of  the  Senate  of  the  I'nited 
Stiites.  The  certilicate  mentioned  in  the  preceding  section  shall  be 
eniintersigned  by  the  secretary  of  state  of  the  State."' 

Indcr  tliis  .statute,  the  Senate  has  held  tliut  an  election  is  valid 
wlitii  inad(!  in  a  joint  convention  by  a  majority  of  the  nK')nl)er.s 
of  liotli  houses,  in   Uio  absence  of  a  (inornni  of  one    of  tliem.i" 


0  IT.  S.  n.  S.,  §§  14-10.  The  iai- 
iiM'.'i.-ilo  en  11  SO  of  this  le;iisl,'itioii  wiis 
Tiihii  P.  Sloeldon'sCdfO,  T.iffs  Sennto 
El.'l'on  C'lisea,  continiKvl  Ivy  Furl ler, 
|>.  '2J('i;  where  tlio  Seniilo  ilivMed 
iiliiMi,t  evenly  upon  tlie  (luesllou 
wlirllipr  a  plurality  of  tho  joint  UB- 
sembly  could  elect. 


>'  Cnsn  of  Jnines  U.  Eustls,  iliiil.,  p. 
4fi4;  Davidson  v.  Cull,  lliid.,  pp.  710- 
712.  Tho  I.ist  case  overruled  a.  deel- 
sloM  on  till'  snlijeet  liy  til e  Slide  eourt ; 
Sliito  rx  rel.  FleiuinK  r.  Ciinvford,  28 
Fin.,  411.  See  SpolTord  r.  KelloKK; 
Tuffs  Seiintt)  Eloelioa  ('uses,  loiitin- 
ucd   by  Furber,   p.  471.     It  was  tlio 


470 


THE   SENATE. 


[chap.  XI. 


AVluTo  the  Constitution  provitled  that  the  legislature  in  extraonh- 
nary  sussion  shoiihl  enter  upon  no  husiness,  except  that  stated  in 
tlic  proclamation  by  which  it  was  called  together ;  the  Senate  lield 
that  sLiidi  a  legishiture  might  elect  a  senator  and  till  a  vacancy, 
although  that  object  was  not  stated  in  the  proclamation.'^ 


opiuion  of  Souiitor  Edmunds  that  so 
much  of  an  net  as  doclaivd  what  legis- 
lature hhouUl  «lect  n  senator  and  au- 
thorized the  election  by  the  legislature 
in  joint  convention  was  unconstitu- 
tional. "  I  wish  to  say  one  word,  Mr. 
President,  about  what  is  called  tlie  act 
of  CoiiRress  of  IMGfi.  The  Constitution 
provides  that  Congress  may  regulate 
the  maimer  liy  which  and  the  time  ut 
which  the  legislature  of  a  Stale  shall 
elect  a  Senator.  That  Is  all  the  au- 
thority which  the  Constitution  of  the 
Uniteil  States  reposes  in  C'ongr<'ss 
over  that  suijject.  It  says  in  another 
place,  but  in  the  same  connection, 
that  the  legislature  of  u  Slain  shall 
ordinarily  —  I  nm  not  now  on  the 
question  of  lllling  vacancies  —  elect  a 
Senator  for  a  term  of  tlx  years.  It 
names  nothing  but  the  legislature  of 
a  State  to  <lo  that.  I  was  hero  whi^n 
the  net  of  IHCid  passed,  l)\it  I  had  just 
come  into  the  Senate  aiul  I  gave?  it  no 
attention;  I  prohalily  voted  for  it.  It 
there  was  a  division,  it  lielng  rejiortcd 
by  a  cominittee.  But  I  have  been  of 
the  opinion  ever  since  I  came  to  ex- 
amine the  subject,  and  I  am  of  the 
opinion  luiw,  as  I  luivo  staled  before, 
I  think,  in  this  body,  tliat  the  act  of 
Congress,  in  so  far  as  It  undertakes  to 
declaro  what  legislature,  whether 
chosen  before  or  after  tli<>  expiration 
of  a  term,  or  how  long  before  or  how 
long  after,  shall  elect  a  Senator,  goes 
beyond  its  conslitulional  power.  I 
am  also  of  opinion,  and  I  stale  II  de- 
liberately, and  I  believe  I  have  stJited 
It  before,  that  wli<>n  the  Congri'ss  of 
the  United  Stales  undertakes  to  cre- 
ate u  body  to  elect  a  Senator  which 


the  Constitution  of  the  State  has  not 
created,  and  which  is  not  its  legislii- 
ture,  it  has  gone  beyoiul  its  pinvor. 
By  the  constitution,  I  think,  of  every 
State  in  the  Union,  certidnly  every 
one  that  I  know  of,  the  legislative 
power  is  vested  in  two  sepiirati!  and 
inilependent  iiodies,  each  one  of  wliich 
acts  by  itself  and  for  itself,  and  llinl 
Is  the  legislature  of  the  Stale  of  which 
the  Constitution  of  the  United  Statw 
speaks  when  It  says  that  tli(>  legisla- 
ture shall  ele<'t  a  Senator.  Theicfi>ro 
I  am  of  opinion  that  Congre.Ks  has  no 
more  power  to  turn  thi!  two  boilirs, 
the  Senate  and  House  of  Representa- 
tives of  a  Slate,  formed  under  its  own 
constitulion  as  two  separate  biMlies  ef 
different  numbers  and  of  dilTeroiit 
constituencies,  into  one  consoliilatcd 
body  voting  per  capita,  than  it  lias  to 
de-laro  that  a  town  meeting  in  the 
State  of  Vermont  may  elect  a  Senater 
and  call  that  a  legislature,  liecauso  it 
Is  not  liy  the  constitulion  of  the  SUto 
its  legislature.  But  that  is  c  part  fr-m 
this  question,  and  I  shoidd  nut  havo 
referred  to  It  only  that  the  act  of 
Congress  bus  lieen  s|ioken  of."  (Ke- 
marks  of  Senator  George  F.  Ednnni(U 
in  Blair's  Cane,  Congressional  iti'cnnl, 
vol.  xvli,  Part  I,  p.  2;t.  Tafls  Senate 
Election  Cases,  continued  by  Furlier, 
p.  44. ) 

1'  Lucas  I).  Faulkner,  Taft's  S(>iiate 
Election  Cases,  continue<l  liy  Furhcr, 
021).  The  grounds  of  the  decision  are 
clearly  slated  in  the  following  extract 
fr(un  the  Report  of  the  Commltleeoi) 
Privileges  and  Elections  present<'il  h.V 
Senator  George  F.  Hoar  of  Mass.nliu- 
aetts:   "It  is  claimed  by  Mr.  Lhus. 


§"•] 


SENATOniAL   ELECTIONS. 


477 


'1  lie  Senate  has  decided  that  when,  at  the    expiration  of  the 
.senatorial  term,  there  are  in  existence  two  State  legislatuies,  the 


tliut,  as  this  body  was  not  permitted 
10  t'litor  upon  any  loyislative  htisinoss, 
Mcrpt  such  as  related  to  the  oinht 
nmlti'iH  Bot  forth  In  the  call,  It  was 
licit  a  legislature,  hut  was  a  body  de- 
riving its  power  from  the  will  of  the 
executive,  and  so  was  exerting  a  cer- 
tain executive  or  quasi  executive 
fiuiction,  something  like  that  which 
is  exercised  by  the  Senate  in  giving 
its  assent  to  the  nominations  of  pub- 
lic ollicers.  But  it  seems  to  us  that 
tills  view  cannot  be  supported.  In 
till,'  first  place,  the  body  is  expressly 
declared  by  the  Constitution  of  West 
Vii'gluia  itself  to  be  a  legislature.  In 
file  next  place,  the  function  wlilch  it 
exercised  In  making  euactnipnts  upon 
tlie  eiglit  great  subjects  mentioned  In 
tlio  call  of  tlio  governor  is  clearly  a 
let,'islalivo  function.  Among  them, 
ui  iler  Articles  Z  and  II,  is  the  making 
ni  proprlations of  pul)llc  money ;  under 
Article  III,  the  regulation  of  proce- 
dure in  criinliial  eases;  under  Articles 
V,  VI,  and  VII  woidd  exist  the  power 
to  declare  certain  high  crimes  and 
niisdciiieandrs ;  and  under  Article 
VIII,  to  give  the  assent  of  the  State 
to  the  establishment  and  conllrmation 
of  its  lioimdary  lines. 

■  It  Is  dillicult  to  conceive  of  any 
(Iclinitiou  of  the  word  'legislature' 
wliii  li  winild  not  include  a  body  eap- 
iil.le  of  passing  and  actually  passing 
Siiiili  enactments  as  these.  Tliey  can 
ho  binding  on  the  people  of  the  com- 
nioiiweallli  only  as  legislation.  They 
Would  lie  subject  to  bo  construed  and 
onforei'd  by  the  courts  of  that  State 
only  In  tlieir  character  as  laws. 

'■  Hut  it  seems  to  the  committee 
tliMt  the  construction  of  the  State  con- 
stiliilion  of  West  Virginia,  upon  wlilch 
tile  above  argiimoiit  is  based,  is  one 
wliicli    will    uot    bear    examination. 


When  that  constitution  provided  that 
the  Icgislatiireso  convened  in  extraor- 
dinary oi'casioiis  'should  enter  upon 
no  business  except  that  stated  in  the 
proclamation  by  wiiich  It  was  called 
together,'  tlie  people  must  lie  pre- 
sumed to  have  had  in  mind  business 
to  bo  transacted  under  autiiority  of 
the  State  constitution,  and  not  to 
have  Intended  to  pioliHilt  the  per- 
formance of  duties  Imposed  upon  it  by 
the  supreme  aiithnrily  of  the  Consti- 
tution of  the  United  States. 

"If  the  argument  be  sound  tliat  a 
legislative  body  which  is  pmliiblted 
from  entering  upon  certain  classes  of 
business,  or  wliicli  is  conlim  d  to  cer- 
tain classes  of  business  clearly  legis- 
lative in  thi'ir  cliaiiuMer,  is  no  legisla- 
ture In  the  coiistitiitioiial  si  .,  its 
logic  would  require  us  to  declare  that 
the  legislature  of  every  Stale  whoso 
bill  of  rights  excludes  It  from  largo 
domainsof  legislation  is  no  legislative 
body.  If,  under  the  same  provision 
of  the  Conslitntion  of  the  United 
Slates,  tlie  act  of  rimgress  bad  lixecl  a 
day  for  holding  eli'clioiis  lor  liiqin-- 
sentalives  to  Congress,  and  the  Stale 
constitution  or  lan-s  slioiild  prohililt 
the  a.-^scmbliiig  of  llie  peo|i|e  fur  such 
eleetiiuison  the  day  so  lixecl,  it  would, 
we  suppose,  be  held  cl(>ar  tliat  llii>  act 
of  the  Stale  would  be  void  and  tlio 
authority  of  the  act  of  Congress  would 
prevail. 

"We  cannot  see  any  difference  be- 
tween such  prohibition  of  a  Slate 
constiliitlon  applicable  to  the  consti- 
tutional electors  of  Senators,  who  are 
members  of  tlie  State  li>gi-lature,  and 
the  constitutional  eleclois  of  repre- 
sentatives, who  are  a  body  of  electors 
aulliorized  to  vote  for  nienibeisof  the 
most  numerous  branch  of  the  Stato 
legislature. 


478 


THE   SENATE. 


[CIIAI".  xr. 


Uivm  of  office  of  one  of  wliiuli  liiis  not  expired  nntl  that  of  the  otlur 
not  begun ;  the  hitter,  if  tlie  hist  elected,  siiall  ukiet  the  scuii- 
toi-.'^  A  {)ennaneut  organization  of  a  State  legi.^hituio  is  not 
essential  to  a  senatorial  election.  It  is  enough,  if  a  siillitMfiit 
t'Mnporary  organization  has  been  made,  to  wairant  tiie  passage  (if 
hills,  although  no  permanent  organization  lias  been  made  and  the 
secretary  pro  tempore  has  not  taken  any  oath  of  office.'^ 

" 'i'lie  intention  of  the  Congress,  as  is  plainly  evident  from  a  consid- 
eration of  the  whole  act,  was  to  place  it  out  of  the  power  of  a  majcuiiy 
of  ellhcr  house  to  prevent  a  majority  of  the  two  houses  acting  to^ethi'i' 
in  joint  asscnildy  from  electing  a  United  States  Senator,  in  a  e:ise  when' 
tiiere  had  been  such  an  organization  of  the  legislature  as  will  eiiaMf  it 
to  exercise  the  ordinary  functions  of  a  legislative  body,  such  as  om:'(I- 
ing  law3  and  making  record  thereof.  Tliis  being  so,  is  not  the  coiulii- 
sion  irresistible  that  whatever  is  a  8u(Iieio!it  organization  to  cnalilo  a 
legislature  to  do  the  latter  should  be  sutlicient  to  enable  it  to  elect  a, 
United  States  Senator?  Any  other  construction  would  place  it  in  the 
power  of  each  house  to  organize  so  as  to  enable  the  legislature  to  sit  its 
entire  session  of  forty,  sixty,  or  one  hundred  days,  as  the  case  may  be, 
enact  laws,  and  peiforni  every  fuuetion  of  its  being,  save  and  exci'pt 
only  that  of  electing  a  United  States  Senator,  and  then  adjourn,  and 
yet  would  place  it  in  the  power  of  a  JartiouK  majority  in  citlicr  house, 
the  dilatory  and  obstructive  action  of  which  as  u  minorit;/ oi  a  whole 
legislature  in  res))ect  of  proceeding  with  the  necessary  preliminary  steiis 
toward  th(!  elec'lion  of  a  United  States  Senator  is  the  vcr;/  thing  above 
all  others  the  legislation  was  aimed  at,  to  absolutely  prevent  (lie  election 
of  a  Senator  by  refusing  to  make  that  i)ermanont  organization  which 
the  contestant  insists  is  necessary  before  the  legislature  can  elect  a 
Senator."  '* 

The  word  "chosen"  in  tlie  .>-tatuto  means  the  same  as  the  word 
"elected,"  and  the  claim  that  the  legislature  is  not  chosen  until 


"Wo  tlicreforc  are  eloarly  of  tlio 
opinion  tliat  tlio  elo<ti()ii  of  Mr. 
Faulk  nor  at  tlie  special  session  of 
the  li'^islaturi)  of  West  Vlinluia  was 
valid." 

'-  See  tiie  report  of  tlii!  Conuiiittee 
on  l'rivilof,'esauil  Elections,  wliieli  was 
uiianiiiiouHly  approved  by  tlio  Senate, 
'"'  !nalo    Uuports,  45th    Congress,    2d 


Session,  vol.  11,  No.  48.5;  referred  loiu 
Bell's  Case,  Tiift's  Srnalo  Eleclioii 
Cases,  eoiitiiuied  by  Fiirlier,  p.  27. 

'■'Cla^'^ettr.  Dubois,  Taft's  Senalo 
liloction  Cises,  eoiitinued  by  Fuil'cr, 
pp.  OfiM,  G70-C77. 

n  Ui'iiorl  of  tho  CoMiniittee  on 
rrivilet^es  and  Eloetions,  prcseiilcd 
by  Senator    Mitchell    of    Oregon,  ia 


■J 


SENATOIIIAL   KI.FX'TIONS. 


479 


its  ()rLr;inizalion  is  inadmissible.'^  In  computing  the  time  wliich 
iiiii;l  intervene  between  tiie  organization  of  tiie  legislature  and  the 
I'k'ctiou  of  a  senator,  where  the  organization  takes  jilace  on  a 
Tiii'sday,  the  seeond  Tuesday  is  two  weeks  from  that  dale.'® 
A  member  of  either  house  of  Congress  luus  the  right  to  resign 
and  in  his  resignation  to  .appoint  a  future  day  upon  which  his  res- 
ignation shall  take  effect;  and  the  legislature  may  elect  his  suc- 
CL'ssor  before  the  appointed  time.'"  Where,  wluiu  a  legislature 
iiiL'i'ts,  it  is  known  that  a  vacancy  will  occur  before  another  meeting 
of  the  same  or  a  subsequent  legislature,  an  election  shovdd  he  had 
to  (ill  such  vacancy,  altliough  at  the  same  session  the  legislature 
eli'<'ts  a  senator  to  fdl  the  term  the  cxiiiration  of  which  will 
create  a  vacancy.'*  Tlie  fadure  of  the  legislature  to  commence  a 
Kcnatorial  election  on  the  day  directed  by  the  statute,  or  the  failure 
of  a  (luorum  of  one  house  to  be  present  on  one  of  the  days  when 
tlic  statute  directs  that  such  an  election  shall  be  held,  docs  not 
invalidate  a  subsccpumt  election.'^  The  Senate  has  recognized  the 
ri^lit  of  the  Vice-President  to  give  the  casting  vote  in  case  of  a 
tic  on  the  admission  of  a  senator.-"  After  the  Ictcrmination  of 
acuntcsted  election,  either  house  has  the  pov.cr  to  reconsider  the 
same  at  any  time ;  but  this  jjowcr  has  been  rarely  exercised.^' 
It  lias  been  held  by  the  Senate  that  to  deprive  a  member  of  his 


('liif!;;ctt    r.    Dubois.     Tuffs    Soniito 
KIcctioii  Cases,  continued  by  Furbor, 

p.  (;77. 

I'  Nurwooil  1).  Blodgett,  ISTl.Taft's 
Ki'iiiilo  Klcclioii  C.ises,  continuuil  by 
Furlicr,  PI).  2'.);)-2!)!). 

'"  Ki'poil  of  tlio  CViinnuttei>on  riiv- 
lli';,'('8  uikI  Elect  ions,  present  cil  by 
SeiiMtor  Jliteliell  of  Ore),'on,  in  CliiH- 
tjetl  V.  Diiliois.  Tafl's  Semite  r.lc<'- 
lioM  CiiscB,  continued  by  Furber,  p. 
601, 

"  Case  of  Archibald  Diekst)n  of 
Keiiluclfy,  In  1K5'2,  Tafl's  Siuiate  Elec- 
tion Cases,  continued  by  Furbor,  pp. 
13-15.     Sen  mipra,  §  71. 

"  Ilepoit  of  the  Committoo  on 
Prlvilei^'es  and  Eloetioiis,  presented 
liy  Senator  Mitchell  of  Oret;on,  in 
('la(,'gflt   V.    Dubois.      Tafl's    Senate 


Election  Cases,  continued  by  Furber, 
p.  Gd-i. 

"  Case  of  Elliridjio  C.  Laphani  and 
Warner  Miller,  Tafl's  Senate  Elei'iion 
Cases,  eonti;iued  by  Furber,  \i.  COl ; 
Ilartr.  Gilbert,  iliid.,  p.  iHi. 

'-'  Loul.-iana  Cases,  Sjiofford  ii.  Kel- 
loKH,  Taft'a  Senate  Election  Cases, 
continued  l>y  Furlier,  pp.  471,  490; 
Coi-bin  r.  Duller,  il)iil.,  pp.  511,  541). 

■^1  Case  of  .Tared  W.  Willianm,  Tafl's 
Senate  Election  Cases,  continued  by 
Furber,  pp.  '23,  25.  But  see  Cases  of 
Gohlstou  and  Claiborno  an<l  Prenlieo 
and  Ward  In  the  Ilou.se  of  Represen- 
tatives in  tlio  25th  Confiress,  1  Dart.,  i) ; 
supra,  §  70 ;  Lane  and  MeCarty  v. 
Fitch  and  Drliiht,  ibid.,  p.  liH;  Spof- 
ford  r.  KelloKK,  Ibid.,  471,  4!););  caso 
of  George  E.  Spencer,  ibid.,  515,  537. 


480 


THE  SENATE. 


[CHAI'.  XI. 


seat  for  bribery  or  corruption  in  the  course  of  his  election,  it  nuist 
be  sliown  that  he  was  personally  guilty  of  corrupt  pmcticcs.  or 
that  the  corruption  took  place  with  his  sanction,  or  that  a  sutli- 
cient  number  of  votes  to  affect  tlio  result  was  corruptly  changed.'^ 
It  was  the  opinion  of  the  Senate  Committee  on  Privileges  and 
Elections  tliat  tiie  payment  by  one  candidate  to  another  of  money 
as  a  consideration  for  the  hitter's  withdrawal  from  a  contest  l)t!- 
fore  tlie  legislature,  is  such  corruption  as  will  constitute  a  ground 
for  setting  aside  the  election.'^  Whether  bribery  in  a  party  cau- 
cus is  a  sulHcient  cause  for  holding  an  election  void  has  been  tlio 
subject  of  discussion,  but  has  not  l)een  decided.'"  The  fact  that  tlie 
choice  of  a  senator  was  determined  in  the  State  legislature  by 
the  vote  of  the  successful  candidate,  was  held  not  to  avoid  tlio 
election.^ 

Wiiere  two  bodies,  each  of  which  claims  to  be  the  State  legis- 
lature, elect  senators,  the  Senate  .will  usually  recognize  the  dec- 


s'' Caso  of  Henry  B.  Payne,  Tuft's 
Btmati)  Eloction  Cnsos,  continut'd  by 
Fiirber,  i>.  G04.  Soo  also  case  of 
Pow.'l  Clayton,  Ibid.,  p.  348;  eases  of 
I'onieroy,  lliid.,  pp.  3;!0  ami  310;  ease 
of  George  E.  Speneer,  ibid.,  51ij;  ease 
of  La  Fayello  (tiover,  il)id.,  5(35  ;  ease 
of  Jolin  J.  InKalls,  ibid.,  59(i. 

•J3  Case  of  Alexander  Caldwell,  Taft's 
Senate  Eleelioii  Cases,  eonliniied  by 
Fiirber,  pp.  330,334:  "  Looliinv' at  the 
transaelion  in  its  real  eliaraeter,  it 
was  a  sale  upon  the  part  of  Mr.  Carney 
of  llie  votes  of  his  i)ersou»l  and  polit- 
ieul  friends  in  the  legislature,  to  bo 
delivered  by  him  to  Mr.  Ciildwell  as 
f.ir  us  possible.  If  it  were  lenitirnato 
for  Mr.  Caldwell  to  buy  off  Mr.  Carney 
as  a  candidate,  it  was  ecpially  leHiti- 
inatt  to  Ituy  off  all  the  otiier  candi- 
dates and  have  the  field  to  liiin.self, 
by  wiiieh  ho  would  e.xert  a  <pia8i-eoer- 
cion  upon  the  members  of  the  legisla- 
ture to  vote  for  him,  having  no  other 
candidate  to  vote  for.  It  was  an  at- 
tomi)t  to  buy  the  votes  of  members  of 
the  legislature,  not  by  bribiuR  tliem 
directly,  but  through  the  manipula- 


tions of  another.  Tlie  purcliase- 
inouoy  was  not  to  go  to  them  but  to 
Mr.  Carney,  who  was  to  sell  and  div 
liver  tliera  without  tlieir  knowledge." 
"  Buying  off  opposing  eaudidates,  and 
In  that  way  securing  the  votes  of  nil 
or  the  most  of  their  friends,  is  In  elToct 
buying  the  olTlee.  It  reeognizes  can- 
dldaey  for  oHIee  as  a  nierehanlalilo 
eommodity,  a  thing  having  a  money 
value,  and  is  as  destructive  to  the 
purity  and  freedom  of  elections  as  (he 
direct  bribery  of  members  of  the  le^- 
islaturo."  A  minority  of  tlio  Coiii- 
nilttee  were  of  the  opinion  that  the 
offense  was  ouo  which  should  be  puii- 
i.shed  by  expulsion.  The  majority 
recommended  the  adoption  of  a  reso- 
lution tliat  Caldwell  was  not  duly  and 
legally  elected.  A  further  resnlutien 
for  Caldwell's  expulsion  was  also  of- 
fered. Pending  the  consideration  of 
the  subject,  ho  resigned. 

••i*  Case  of  Homy  B.  Payne,  Taft's 
Senate  Election  ,  Cases,  continued  by 
Furber,  p.  G19. 

'^  Case  of  Ephram  Bateman,  ibid., 
p.  80. 


§"•] 


BENATOniAL   ELEOTIOXS. 


481 


tiiiii  by  the  one  recognized  b}'  tlie  other  State  authorities, 
Imt  it  has  exercised  the  [jower  to  examine  into  the  facts  and  dc- 
tirniine  which  of  the  two  contained  a  majority  of  members  law- 
fully elected,  although  the  other  may  have  been  organized  with 
ttaliuical  regularity.  Thus,  where  a  senator  had  Iwen  elected  by 
a  li",'islature,  of  which  members  had  previously  extended  their  own 
trniis  in  alleged  violation  of  the  Constitution,  there  having  been 
iKi  clci'tion  of  their  suecessora,  and  it  appeared  that  bills  passed 
liy  the  body  thus  composed  were  recognized  as  laws  of  the  State: 
tin'  Seii-ite  seated  a  member  thus  elected,  although  a  subsecjiK'nt 
li^islature  had  passed  an  act  declaring  the  election  void  and 
cliiisi'ii  another.*'  Where  a  body  claiming  to  be  a  State  senate 
had  been  recognized  by  the  governor  and  the  lower  house,  the 
Senate  of  the  United  States  refused  to  examine  the  question 
wliellier  it  had  lawfully  obtained  a  majority  in  favor  of  iiie  jjcr- 
.sdii  chosen  by  admitting  two  persons  who  had  not,  and  ex- 
cluding two  who  had  been,  elected  members.^  Hut  wIkm-c  two 
luidics  each  claimed  to  constitute  the  legislature  of  the  State,  and 
caili  elected  a  senator,  the  Senate  hius  examined  into  the  question 
as  to  which  of  them  was  composed  of  persons  duly  elected  to  the 
sii.iie.-*'  In  one  case,  it  refused  to  recognize  that  organized  by  a 
majority  of  those  holding  regular  certificates  of  election,  when  it 
iiiiisidered  that  a  majority  of  the  other  had  been  in  fact  legally 
elected,  and  the  latter  had  been  subsequently  recognized  as  the 
legislature  by  the  governor.^     The  rejjort  said  :  — 

•'  We  are  called  upon  to  choose  between  the  form  and  the  Hiilistiiiieo, 
till'  liclion  and  tlie  fact ;  and,  considering  the  importance  of  the  election 
of  n  Senator,  in  the  opinion  of  your  committee  the  Senate  would  not 
be  justilied  in  overriding  the  will  of  the  people  as  expressed  at  the  bid- 


*i  Potter  V.  Eohbins,  Tnfl'8  Soimlo 
Eli'cliou  CiiseH,  contiiuioil  liy  Fiirber, 
p.  s;i.  But  8(H)  tho  strotiR  minority 
ri'|iiirt  liy  Silas  Wrl(?hl;  ■Wliitclcy  and 
Farrow  i-.  Hill  niul  MlUor,  Ibid.,  p.  264  ; 
I>Hnoand  MeCiirty  r.  Fitch  and  Bright, 
iliiii.,  p.  148;  Louisiana  Cases,  SpofTord 
r.  Kellogg,  Ibid.,  p.  471. 

-'  Case  of  David  Turple  of  Indiana, 
A.  D.   1887,   Ibid.,  p.  623.       But  see 


Corbln  v.  Butler,  A.  D.  1877,  ibid.,  p. 
541. 

M  Sykcs  V.  Spencer,  A.  D.  1874, 
ibid.,  p.  51.');  Louisiana  Cases,  A. D. 
1873,  ibid.,  p.  385:  Corbln  v.  Butier, 
A.  D.  1877,  ibid.,  p.  :.il;  Ciark  and 
MaHlnnisr.  Sanders  and  Power,  A.  D. 
1890,  Ibid.,  p.  631. 

"  Sykes  v.  Spencer,  A.  D.  1874, 
Ibid.,  p.  515. 


482 


TMK   SKNATK. 


[CIIAI'.  M. 


lot  box,  out  of  (leftTPnce  to  certificutes  issued  frroneously  to  piMSdiis 
who  \v(>io  not  cleoti'd."  "° 

'I'lic  iiiithority  of  tliis  lui.s  been  shiiken  by  a  later  deeisioii.'" 
Wliere  States  were  in  insnriectkm  and  oceupied  by  military 
force,  tile  Senatt;  dctenninf'd  tliat  there  eould  be  no  free  cliiijct', 
and  tliut,  cons(M[uently,  tbe  action  by  tlieir  respective  lej^islatiuvs 
in  elc(tini>'  senators  was  void.'*'''  Dnring  the  Reconstniction,  liotli 
houses  (if  CoHfrrt's-!  ref\ise(l  to  admit  senatoix  from  States  wliicli 
had  ln'cn  in  insurrection  and  which  had  not  ratilied  the  Fouitcciiili 
Amendment.''** 

Where  senators  and  representatives  Avere  (dected  before  tlie  ex- 
pulsion of  their  predecessors,*'  before  the  admission  of  a  Territniv 
into  tlie  I'nion  as  a  St.'.Le,  and  before  the  readinission  of  ;i  Sinic 
into  the  Union  after  Ueeonstrnction,  it  was  held  that  the  adiiii.'siuii 
related  back  so  as  to  ratify  their  election.*''  A  senator  thus  eleiU'ij 
was  not,  however,  admitted  to  the  Senate  after  the  passage  of  an 
enabling  act  lint  before  the  admission  of  the  State.**  It  has  lucii 
held  that  ;u\  election  of  a  territorial  delegate  before  the  organizn- 
tiou  of  the  territorv  is  void.''" 


'"  Taf  L'h  Si'iialc  Elcrtiou  Cases,  coii- 
tiuiii'd  by  l''urbi>r,  p.  521.  Seo  u  lar- 
ger ({lint  itioii  from  this  roixirt,  infra, 
C'h.  XVI. 

"'  Clark  mill  MnKinnis  v.  Samlprs 
aiitl  Tower,  A.  D.  IH'JO,  iljiil.,  \>.  031, 
G'.n  :  "  The  report  on  Hykos  v.  Speneer, 
(leeiih'd  by  I  lie  Senate  in  1873,  is  re- 
lied iiiioii  as  supiiortiiiK  an  diiinioii 
emit  rary  to  lliat  wliieli  we  have  slated. 
If  so,  we  dissent  from  it.  ]3iit  ll  is  to 
be  remarked  that  in  that  case,  wliieh 
was  upon  an  elecliou  held  less  than 
seven  years  after  the  close  of  the,  war, 
the  doctrine  of  the  report  is  not  re- 
lied upon  in  the  debate.  It  is  further 
to  be  oliserved  that  that  ease  is  to  be 
distiuKuished  from  this  by  the  fact 
that  there  it  was  conceded  that  the 
persons  who  had  not  certificates  were 
duly  elected." 

"•  Cases  of  Fislibaek,  Baxter  and 
Snow,  ibid.,  p.  202;  cases  of  Cutler, 
Smith  and  Hahn,  ibid.,  p.  210;  eases 


of  bej^ar  and  Underwood,  iliid.,  p.  '.il  1; 
siyjra,  §  3a. 

"•'  ■Tones  and  (larland  v.  IIiDmimIiI 
and  Rice,  Ibid.,  p.  241;  Marvin  r.  (in- 
born, ibid.,  p.  24.');  Whiteli-y  ami  Fiii- 
row  V.  Hill  anil  Miller,  iliid.,  p.  247; 
Hart  V.  Gilbert,  ibid.,  p.  2S2 ;  siijim. 
§38. 

■'*  Case  of  Willey  and  Carlile,  A.  b. 
18(>1,  ibid.,  p.  177. 

**  Case  of  I'helps  and  CavanaiiL:!i  nf 
Minnesota,  1  liart.,  248;  Hail,  r.  (lil- 
lierl,  Taft's  Senate  Election  Ciisrs, 
continued  liy  Furber,  p.  '282;  l!i',v- 
nolds  V.  Hamilton,  ibid.,  p.  -^'i', 
McCrary  on  Elections,  3d  ed.,  S  '■210- 
Contra.  But  seo  case  of  Blouiil  ami 
Cocke,  Taft's  Senate  Election  Cases, 
continued  by  Furber,  p.  77. 

■'"  Case  of  James  Slnelds,  Taft's 
Senate  Election  Cases,  contiuuuil  I'y 
Furber,  p.  171. 

■'"  Case  of  J.  S.  Cauement,  2  Bart, 
51fi. 


?  ''^■] 


CLASSIFIf'ATION    flK   Till:    SENATK. 


■IX:\ 


The  int'ligibility  of  the  jjcrsou  who  recuivus  a  majority  of  tin- 
\ litis  (hn'S  not  give  tlie  election  to  the  candidate  with  tlie  next 
lii<;iicst  number. 

^  78.    Classiticatioii  of  the  Somite. 

The  Constitution  directs  a  chissilication  of  the  Senate  as  fol- 

liiws :  — 

"  IiiiiiiL'diutcly  after  tlioy  shall  be  nssenibled  in  Conscqiiciifo  of  tlic 
lii'.-l  I'.lfctioii,  they  hIiuII  be  divided  sih  nearly  us  iiiny  bo  into  three 
t'hissi'g.  The  Seiits  of  the  Seimtors  of  the  fh-st  Ciiiss  sludl  be  vaeati'd 
!it  Ihi'  Kxpiration  of  tlie  second  Year,  of  the  second  Class  at  theex])';!;!- 
tiiiii  (>r  tiio  fourth  Year,  and  of  the  third  Class  at  the  expiration  of  tlie 
sixih  Vt;ir,  so  tliiit  one  third  may  be  chosen  every  second  Year."  ' 

On  till'  original  organization  of  the  Senate.  May  14th,  1780,  a 
I  iiiniiiittce  was  apiiointed  to  consider  and  rejxirt  a  mode  of  ciiiry- 
iiit,'  into  efYect  tliis  constitntioiial  provisiuii.  In  accordiinee  w  illi 
tlirir  report,  the  senators  then  sitting  were  aibitrariiy  divi(ie(I 
into  three  cli'.sses,  the  tirst  iiududing  six  ne/nibcrs.  and  the  second 
ami  third,  seven  each.  T'Inee  pajiers.  iiundicred  1,  2  and  3  re- 
si'cctively,  were  rolled  up  and  jiut  into  a  box  by  the  secretary ; 
luid  then  one  senator  from  each  cla.ss  drew  a  number.  The  class 
which  (lri!W  number  1  vacated  their  seats  at  the  expiration  of  the 
second,  the  class  wlii(di  drew  number  2  vacated  their  sciUs  at  the 
end  of  the  fourth,  and  those  who  drew  number  3  at  the  end  of 
the  sixth  year.  This  jdan,  on  account  of  the  number  then  pres- 
ent III  the  Senate,  left  tlu;  first  class,  who  vacated  their  seats  at  the 
cxpiriition  of  the  second  year,  one  less  in  number  than  each  of  the 
other  two.  To  prevent  any  unnecessary  incipiality  in  the  classes, 
when  the  senators  from  New  York  appeared,  two  lots,  one  iiuni- 
heivd  3,  that  of  the  small  class,  and  one  blank,  were  placed  in 
the  box.  After  each  senator  bad  drawn  a  lot,  the  one  who  di-cw 
iiiinilu^r  3  was  placed  in  the  small  class;  and  the  other  di-ew 
ayiiiii  from  the  bo.,  containing  numbers  1  and  2,  taking  his  place 
ill  tlie  class  whose  nund)er  he  drew.  When  the  seiiatois  from 
Noilii  Carolina  ajipeared,  there  were  then  two  classes  of  eiiual 
iiiiiiiluMs,  iuul  one  with  a  numb<T  in  excess  of  each.  The  num- 
hers  of  the  equal  classes  were  put  in  the  box.     Then  each  senator 

§  78.  1  Constitution,  Article  I,  Section  3.    See  supra,  §  7C,  over  notes  19-21. 


184 


TIIK   SKNATK. 


[•'MAI',  xr. 


"liL'w  one  and  was  clsussed  acconlinij  to  tlie  nuinborhe  drew.  Tin; 
rlasscs  wi'i'e  tluin  t'(iiiiil  in  nunilifi'.  Accdidini^ly,  wIlcii  tlic  ,scii;i- 
loi'H  friini  UluiiU!  Island  apjit'iii'cd,  pallet's  luindii-rcil  1,  :2,  ami  ')  re- 
.'.puctively,  were  ajjain  plact'd  in  tliu  hox  from  wliicli  each  sinatur 
drew  one.  Tlie  procecdinj^'s  continncd  ad'oi-dinL,'  to  tliesi'  siicifs- 
sive  inetliods  nntll  tlie  admission  of  the  senators  from  Washiiigtdii, 
North  Dakota  and  South  Dakota  at  tiie  Hanie  time.  Tlu'  same 
three  numbers  wen*  tlien  placed  in  the  box.  and  drawn  by  one  sen- 
ator from  each  of  the  new  States.  The  seeretary  tiien  placed  in 
tlie  ballot-box  two  papers  of  etpial  size,  nundnred  1  and  3  re- 
spectively. Each  of  the  senators  from  the  State  which  had  tlnw 
drawn  nnndier  1  drew  out  a  paper  and  was  assijjned  in  accord- 
ance with  the  luimber  he  di'ew.  The  secretary  then  placed  in  tlie 
ballot-lK)X  nund)er8  1,  2,  and  3,  suid  each  of  the  senators  fidni 
the  State  which  bad  drawn  nundier  2  drew  a  lot  from  tlic  liox. 
They  were  then  assigned  in  accordance  with  the  nnnd)cr  dniwii 
by  each;  and  the  remaining  lot  with  a  blank  wius  again  placed  in 
the  box  and  the  senators  from  the  remaining  State  drew  fioni 
them.  He  who  drew  a  nuud)er  was  assigned  to  the  class  rcpre- 
sented  by  it;  and  he  wlio  drew  a  blank  drew  again  from  die  Ijox 
whicli  then  contained  the  other  two  inunbci-s,  and  was  assigned 
according  to  the  number  drawn.  When  the  senators  from  Idalui, 
Montana,  and  Wyoming  were  adnutted  at  the  same  tina;.  tlic  same 
proceedings  took  plaee.^  A  custom  has  been  thus  estahlislied 
which  will  be  followed  in  the  future. 


^  7».    Filling  Vnonnoio!4  in  the  Sciinte. 

The  Constitution  provides  that  "if  Vacancies  happen  by  Resig- 
nation, or  otherwise,  during  the  Rece.ss  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temporary  Appointments 
until  the  next  Meeting  of  tlie  Legislature,  which  shall  then  lillsucli 
Vacancies."'  The  nutaning  of  the  phra.se,  "hapj)en  during  the  He- 
ce.ss  of  the  IjCgislature,"  is  n  question  which  has  been  the  suhjeit 
of  conflicting  precedent;-!  and  is  not  yet  definitely  settled.  Is  tlie 
expiration  of  the  term  of  a  seni'tor,  which  is   not  fdled  hy  the 

a  Furtjor,   Pre('odeiitK   Kelatlii«   to  8  79.  >  Coustitutiou,  Artli-le  I,  Soc- 

tlie  Privileges  of  tlie  Senate,  pp.  190-      t;on  3. 
203. 


§  7'.'.]  VACANCIKH.  4H."> 

lugisliitiiru,  eithfi'  tlinmph  its  failure  to  uwvt  ntU'S  tlui  tciin  fx- 
])ins,  or  Ity  iu  iiiljonrniiiciit  wiliiout  an  eli'ctioii,  tlie  liii[)peniiig' 
iif  ;i  vacancy  wliii;h  autliorizcs  an  apjiDintiiient  Ity  the  Stat«  exeeii- 
tivc  .'  \u  other  wortls,  is  tiu?  -.void  *•  liappcn  "  in  this  connection 
.sviuinynions  with  tlie  word  "  occur,"  or  ilocH  it  mean  tiie  occur- 
rfiuc  of  an  event  wJiich  cannot  1k)  foreseen  and  .so  provided  for 
liv  till'  calling  of  the  lejjislatnre  in  extraordinary  session,  if  that 
k'  necessary,  to  (ill  the  vacancy  ? 

Ill  snpport  of  the  more  restricted  moaning  of  the  word  "haj)- 
piii."  its  advocates  rely  upon  the  ordinaiy  meaning  of  the  word, 
wiiicli,  it  nnist  be  admitted,  suggests  that  the  event  was  iinox- 
pfctcd;'''  upon  the  surrounding  words  in  that  clause  of  the  Con- 


-  '■  Hut  It  is  Kiiid  tlmt  tliK  word 
'hiippi'ii '  dooH  not  iioccssarily  n^for 
to  a  ciisiialty  or  an  uuox|io<'tod  ovciit ; 
that  in  (iiir  lauKuaKO  wo  make  uko  of 
that  word  iiidifforontly  for  '  ocour  '  '  or 
I'oniK  to  pasH.'  It  Is  respoi'tfiilly  siih- 
iiiiltiMl  tliat  tills  is  not  truu.  An 
event  that  is  provldi'd  for  by  law  to 
lakii  plucn  at  statod  periods  known  to 
all  nii'n  is  not  correctly  spoken  of  liy 
pi'dplc  of  ordinary  education  as  '  liap- 
pi'iiiiin,'  liccause  there  Is  no  element 
of  uncertainty  In  It.  The  examples 
Hivcn  of  statutes  providing  for  cerUiln 
thing's  to  be  done  on  a  certain  day  of 
aiiii>nlh  'If  It  happen  not  oi.  a  Snu- 
ilav,'  etc..  will  not  bear  out  the  asser- 
tion. It  Is  true  that  it  might  be  known 
I"  all  men  who  are  astronomers,  and 
wimld  sit  down  and  makocalculalioiia 
that  a  certain  date  In  a  certain  year 
wonlil  full  on  Sunday ;  but  the  ^roat 
masses  of  mankind  do  not  think  of  it 
in  that  way.  They  speak  as  though 
thi'  lliinK  were  absolutely  uncertain. 
But  we  do  not  say,  for  instance,  that 
any  natural  event,  which  all  men 
kuow  and  look  for,  did  '  happen  '  to 
come  at  the  time  on  which  it  was 
expi'cti'd ;  we  do  not  say  that  the 
sun  '  happened '  to  rise  on  a  certain 
(lay;  we  do  not  say  that  water  'hap- 
pens '  to  How  down  a  descent  by  the 


force  of  (jravity.  That  Is  a  known 
law  of  nature.  We  do  not  sny  that 
Christmas  '  happens'  to  come  on  the 
2.>th  of  Decenilii'r;  by  the  universal 
consent  of  CliiistoiKloni  tli.it  event 
comes  on  that  day  without  i)cnulven- 
ture.  We  do  not  say  that  a  not© 
'  happens  '  to  fall  due  on  the  day 
wlih'li  Is  specllled  In  the  instrument, 
thou|{h  It  no  doubt  Is  often  said  tliat 
It  'happened'  to  fall  due  when  the 
maker  did  not  have  the  money  to  jmy 
It.  We  do  not  sny  that  (.'on(,'rcss 
liappened  to  meet  on  thi'llrst  Monday 
in  December,  that  is  the  law.  Wo  do 
not  say  that  a  Scnatoi's  term  in  this 
liody  hap]ieiied  to  expire  on  the  Hil 
day  of  March,  for  that  is  the  law 
written  In  thi>  Constitution.  We  do 
say,  |>er  contra,  that  Senator  A.  U. 
'  happened  '  to  die  before  his  term  had 
expired  ;  we  do  say  that  Si'iiator  C.  I>. 
'  happened  '  to  resii.vi  before  his  term 
had  expired;  we  do  sny  that  Senator 
E.  F.  'hapiiened'  to  become  illsc|iiall- 
lled  by  acceptiun  an  inconipntlblo 
oniceorto  be  expelled  before  his  term 
had  expired,  and  so  on.  In  the  com- 
mon acceptation  of  manUind  these 
phrases  are  used  and  understood  with- 
out <ontroveray.  So  obvious  is  their 
ineanlntt  that  those  who  contend  for 
tlie  power  of  the  governor  to  appoint 


486 


THE    SKNATE. 


[CIIAP.  XI. 


stitiitioii,  '•  l)v  resignation,  or  otliorwiso,"  the  last  two  words  \mw^ 
claimed  to  be  in  aceordance  witli  a  well-known  maxim  of  iiiterijio- 
tation  of  the  coninujn  law,  rostiieted  in  their  meaning  to  events 
of  a  like  character  with  resignation'''  —  were  they  not,  the  words 
"by  resignation,  or  otherwise,''  would  be  mere  surplusage  and 
wouhl  not  have  been  inserted  ;  *  and  fhially  by  the  tlieory  of  our 
form  of  government,  wdiieh  favors  the  emanation  of  political  power, 
as  directly  as  may  be,  from  the  peoide,  and  makes  it  seem  unwise, 
in  case  of  doubt,  to  strengthen  the  executive.'' 

The  advocates  of  the  view  that  a  broader  power  exists  in  tlie 
executive,  urge  that  the  most  imjiortant  end  required  by  public 
policy  and  designed  by  tliis  and  other  provisions  of  the  Coustitu- 
tion"  is  to  keep  the  Senate  always  full,  and  to  prmeiit  an}-  State 


for  iiny  vacancy  wliatcv(>roi'cmTln(j  in 
the  nM'cas  of  tlic  Icgislaturoof  a  Stale, 
arc  <'()iiipi>llc(l  to  nisort  In  tlic  lU'K"- 
nicnt  ((((  inronrpnirnli."  (Miiioiity  He- 
port  in  Loo  Mantlc'H  C'uhc.) 

"  Ham  t'.  Mist^ouri,  IS  Howanl,  12fi  ; 
Tcniiii  ks  r.  S<'!iwaltz,  L.  II.  3  ('.  P., 
315;  Astibury  Ry.  *  C.  Co.  v.  lliclic, 
L.  It.  7  H.  L.,  (l.")3  ;  Countess  of  KotliOn 
Kiikalily  WiterWorli.sConitiiissioiior.-i, 
J).  L.  It.,  7  Aijpeal  (Jascs,  C.tM,  70(!. 

*  '•  In  apjilying  these delinitions and 
It'gal  rules  to  tlic  clause  \vc  are  dis- 
<Missitig,  if  tlio  words  'orotlierwi.se' 
nrt^  not  liiidted  to  vacaucios  oceurrlnf? 
in  a  maimer  Biniilar  to  a  '  resigna- 
tion'of  a  Senator,  it  would  seem  im- 
}>o^sil>lo  to  nuiko  un  idea  plain  liy  tho 
uso  of  language.  It  can  not  refer  to 
a  vacancy  occurring  by  tlio  regular 
expiration  of  a  term.  Tlial  sugges- 
tion is  excluded  by  tlio  previous  men- 
tion in  special  words  of  llioso  terniK, 
provision  in  like  Hpecial  words  being 
niado  for  lllllng  tlioin  ;  tlierel'ore,  the 
next  clausu  is  Independent  and  en- 
tirely disconnected  from  that  preced- 
ing it  Inasmuch  us  it  rofcrs  and  must 
refer  to  tho  lllllng  of  a  vacancy  hup- 
peidiig  otherwise  than  by  the  expira- 
tion of  a  regular  term.  Tho  enlarging 
or  gonoral  words  used  by  the  authori- 


ties must  relate  to  tho  same  kiml  cf 
tilings  to  which  tho  special  wcmls 
relate;  they  must  bo  pjuxdvm  iji'iirrin. 
;is  the  law  says.  Now  the  only  pos- 
sibl(^  kindred  lietwecn  tho  aci'ldmital 
and  tho  regular  terminal  Ion  of  scua- 
toiial  s(>al  is  that  th(>y  are  both  t'O- 
r'a;ifiV«,  but  they  are  not  f;/»«r/cm,';ciim'ji. 
in  that  tho  one  is  a  vacancy  cri'iilcd 
by  law  iiiid  tho  other  is  a  vaciinoy 
created  by  aci-idcnt,  and  a'o  eiitiicly 
dilTerent  in  their  legal  offeits.  Tli.' 
ono  is  a  basis  for  tho  exerilsn  of 
executive  power,  tho  other  is  not" 
(Minority  Keport  in  Lee  Ibmlif's 
Case.) 

'■  "  A  Senator  under  an  oxci'iitlvt' 
appointment,  may  or  may  not  ropri'- 
sent  tho  political  views  of  his  Hiatft 
Ho  nniy  bo  tho  more  porscmai  favniili' 
of  the  govcM'iior.  TlieSenatp,  asfiirus 
practicable,  shonhl  be  niado  to  rcprc- 
Himt  its  const ilutlonal  constltuem'T, 
and  In  this  respect  should  pn'serw 
tho  republican  feature  of  our  I'liici." 
(Minority  Report  of  Comniiltoo  ■  . 
rrivilegea  and  Elections  adopti'ii  I'.v 
the  Senate,  in  I'helpsCasn.  TiU'l'sSra 
ato  Election  Cases,  continued  liyFiir- 
b(>r,  p.  '20.) 

«  Citing  Article  V,  which  provides 
that  "no  State,  without  its  cimsent, 


f,. 

l-liSll 

Wi^(;  ':'    "ll 

^h■ 

11  I.edc 

ill 

I.e  Sen; 

f'on.-iii 

r.  s,  ] 

cpinio 

V(j| 

ii,  p.  r,: 

\..l 

Ml,    1). 

il.i. 

.,Xu|. 

vnl. 

N'i.   p. 

1 

Iliid., 

1 

Stale 

kdi 

ana,  2t 

•] 


VACANCIES. 


4h: 


fniiii  buing  deprived  iit  any  time  of  iiK  full  ivjji'cseiitiition  in  (lie 
fiiuue.  They  relj'  ii[)()n  the  iiiactical  lonstiuctioii  ut'  llii!  siiiise- 
(jiu'iit  similar  langiuii^e  that 

"IIki  I'rosident  slmll  have  rower  to  lill  up  all  Vaoniieios  tluit  may  liap- 
licii  (liMin<»  tlie  Heeesa  of  the  Senate  l)y  <;raiitiug  ('omiiilHsioim  which 
slmll  expire  at  the  end  of  the  next  Si'ssion."  ' 

i'liili'r  tliis,  the  power  of  tlie  President  to  iill  vacancies  caused  by 
the  exiiiration  of  olhciiil  terms  during  the  reeess  of  the  Senate 
li:;s  heeii  recognized  by  statute ;  **  has  lieen  extended  in  practice, 
iiiulcT  the  sanction  of  nine  Attorne^'s-General,^  including  Itoger 
1).  'ianey,'"  afterwards  Chief-Justice  of  tlie  I'nited  States,  to 
ra-rs  wliere  the  Senate  had  adjourneil  witiiout  acting  on  a  uouu- 
iiaiion  to  till  a  vaeanc}' which  had  occurred  during  its  session; 
and  i.  sanctioned  by  the  decisions  of  tlie  Suprinnc  Court  of 
Iiiiliana  uiuh'r  a  similar  constitutional  jirov'sion  concerning  tiie 
iKiwcr.-i  of  tile  governor.!'  It  appears  iiy  tlu;  reports  of  tlie  de- 
liates  of  the  Federal  Convention  that  the  words,  •■  by  resignation, 
(ir  otherwise,"  were  not  contained  in  tiie  fir.-.t  draft  of  the  Consti- 
tinii.  IIS  rei)ort"d  b\' tiie  Committee  on  Detail,'^  and  were  sulise- 
i|ii(iilly  inserted  upon  the  motion  of  Madison  "  in  order  to  prevent 
(i(iul)l.v  whether  lesiguations  could  be  made  l)y  senators."  '•'  ••  W'c 
hear  nuicli  of  the  word  'otherwise."  If  Mr.  .Mailisoii  by  [irojios- 
iii','.  or  the  Convention  by  adopting,  tlic  words  •  resiguation.  or 
otlicrwise,'  had  meant  to  classify  a  scries  of  eases  like  lesignatioii, 
why  would  not  Mr.  Madison,  einiuent  in  his  knowledge  of  tlie 
iviglisli  language  and  clear  in  its  expression,  iiavo  said  '  like- 
wix'".'  "'^      The  latest  precedent   was   the    Montana    case  of   Kee 


shall  lin  dopriv.  il  ot  itn  oijual  Suffrngo 

in  till'  Sl'DlUl'." 

'  ('(insdluliou,  Artie].'  II,  Section  2. 

»r.  «.  iii'v.  St.,  s  nil!). 

'('pillions  ot  Altorncy^-Cti'iu'ral, 
vol.  ii,  p.  iVi,") ;  iliiil.,  vol.  i,  p.  fiUl :  iliiil., 
viil.  iii.  p.  (17;);  iliid.,  vol.  iv,  p.  ")'23 ; 
lliiil.,  vul.  vll,  p.  Ihii;  ihiil.,  viii.  X,  p. 
3'>l\;  ilild.,  vol.  xii,  pp.  ;U,  i'>r,;  iLiid., 
vol.  X'  i,  ji,  r>'J-i. 

'•'  Iliiil.,  vol.  ii,  p.  525. 

"  Stain  cj:  re/.  Vniii'oy  r.  Flyilo,  121 
Ifldiuiiu,  20;   tjlulo  I'.  Golby,  122  ludi- 


nim,  17.  Spo  nl.'^o  Gormlcy  i,'.  Taylor, 
41  (ia.,  7(i ;  M'ulsli  v,  Coiiiiiionwc'iltli, 
7  Weekly  Notes  (Va.  S.  C.   ,  21. 

'-  Madison's  Papers,  Elliot's  Do- 
luites,  2d  ed.,  vol.  v,  p.  1)77. 

11  Il.id.,  !>.  3'.)C..  .S'H/)m,  §  7il.  (ivor 
note  25. 

"  Senator  vieorj^e  F.  EdiiinndH  of 
Veriiiuat,  in  tlie  Deliate  on  lilair's 
Case,  C'oiiKre.s.siiinal  lieeord,  Mil.  xvl, 
Part  I,  p.  23;  Tail's  Senaie  Eieetion 
Cases,  continued  liy  Fiirljer,  p.  40. 


488 


THE   SENATE. 


[CHAV.  xr. 


Miintlc,  decided  August  23d,  1893,  when  the  Senate,  l)y  a  vote  of 
tliirtj'-live  to  thirty,  refused  to  recognize  an  appointment  by  tlu; 
govcrniir,  to  fill  a  vacancy  caused  by  tlie  expiration  of  a  term, 
made  after  the  adjournment  of  tlie  legislature,  which  met  after  the 
term  liad  expired  and  failed  to  elect  a  senator.'^  This  decision 
overruled  the  majority  report  of  the  Committee  on  Privileges  and 
Elections."'  The  decisions  are  so  conflicting  that  the  question 
is  .still  open. 


"  See  the  New  York  World  of  Au- 
gust 24,  1H!)3.  A  motion  to  rouoiisidiT 
was  (Iffivitcd  ou  Au},'iist  28,  by  28 
yeas  to  HI  nays.  This  was  followed  in 
one  or  two  other  cases  at  the  same 
session. 

i"  At  that  lime,  the  Senate  was 
engaged  in  a  proionfied  cimlost  over 
the  repeal  of  that  pail  of  the  Sheiinan 
Act  whith  coraiielled  niDnthly  pur- 
chases of  silver ;  and  the  persons  who 
had  been  ajipointed  senators  would 
have  added  to  the  strength  of  the 
minority.  The  previous  cases  upon 
the  suliject  were  as  follows:  In  the 
case  of  Keusey  Johns  jf  Delaware,  in 
17'.)4,  it  was  11  solved  by  a  vote  of  20 
to  7  that  whei-o  a  session  of  the  legis- 
lature  had  intervened  l)etwoen  the 
resignation  of  a  senator  and  the  np- 
pointUKMit  by  the  governor  of  Jlr. 
Johns  as  his  sui'cessor,  tlie  appoint- 
•ment  was  invaliil  (Taft's  Senate  EUv- 
tlon  Cases,  continued  by  Furlier,  pp. 
1,2:.  In  the  case  of  ITriah  Tracy  of 
Conncclieut,  in  1801.  the  Senate,  by  a 
liarty  voteof  i:t  to  10,  admitted  Tracy, 
who  liad  been  appointed  '>y  the  gover- 
nor during  a  recess  of  the  le^iislature 
to  fill  a  vacamy  causeil  by  the  expira- 
tion of  his  own  previous  term  (itiid., 
p.  [i).  In  the  case  of  Samiii'l  Smith 
of  Maryland,  in  1800,  Mi.  Smith 
was  admitted  to  the  Senate  under 
similar  circumstances  (ibid.,  p.  4). 
lu  ISO'.),  Senator  Joseph  Anderson 
of  Tennessee,  and  in  1817,  Senator 
John  Williams  of  the  same  State, 
were  respectively  oppolntod  by  the 


governor  of  that  State  before  the 
expiration  of  their  terms  to  1111  the 
auliciiiatid  vacancies  until  the  li'(ris- 
lature  should  supply  them.  Tliey 
took  their  seats  witliout  olijection 
or  dhscussion  (ibid.,  ji.  (J).  In  this 
case  of  James  Lanmau  of  C'oniiedi- 
cut,  in  1825,  the  Senate  refused  lo 
admit  Mr.  Lanmau,  who  had  been 
appointed  by  the  governor  previous 
to  the  expiratiim  of  the  term  of  Ms 
successor  to  1111  the  vacancy  thus 
anticipated  until  the  legislature  wliii  h 
met  a  few  months  later  should  su|i|ily 
it.  The  vole  was  23  to  18  (ibid.,  pp. 
r>,  C'.  Whether  the  ground  of  the 
exclusion  was  thatno  vacancy exislcil. 
or  that  the  executive  could  iiol  supply 
a  vacancy  before  it  hajipeued,  Ims 
been  disjuited.  (Compare  the  argu- 
ment of  Senator  Vest  of  Missouri  in 
Blair's  Case,  ibid.,  1)7  3!),  with  il"' 
argument  of  Senator  Hoar  in  the  siiiiio 
case,  ibid.,  41  42,  and  the  ndiierity 
report  of  the  Coinmittee  ou  Privileges 
and  Elections  which  was  approved  by 
the  Senate  in  Hell's  Casi-,  ibid.,  jip.  Ill  ■ 
32.)  In  the  case  of  Ambrose  II.  Sevier 
of  Arkansas,  in  1837,  the  duratlen  of 
the  term  of  Smier,  after  his  clecliiui, 
had  been  determined  Viy  lot  anil  c,\- 
pireil  within  n  less  time  tliiin  ."ix 
years.  The  governor,  before  il«  r.\- 
jiirnlion,  appoinled  Sevier  senator  to 
till  thc>  anticipated  vacancy  until  Hi" 
legislature  could  supply  it.  The 
Commit  tee  ou  rrivlleges  and  Klei- 
thms  approved  the  decision  in  L.ui- 
nian's  case,  stating:   "This  decision 


VACAN(!IES. 


48U 


li  st'cms  that  where  the  (hiratioii  of  the  term  of  a  senator  ia 
(lilfiniiiiud  by  lot,  but  i.s  limited  to  a  kiss  period  than  six  years. 


scouis  to  liuvo  boou  goufirally  no- 
(Hiii'scoU  in  bineo  thiit  tiiin! ;  nor  is  it 
iiiti'iided  by  tlie  coiumilteo  to  call  its 
(•()rii>(lii088  in  ijuo-slion.  Tiio  priii- 
cipii'  iisHi'rtnd  ill  tliiit  cnse  is  tliat  tlio 
ligi-lutiin'  of  a  Stato,  l)y  malvinsj  elce- 
thMis  tlii'iiiHelvi"<,  sliall  providt!  for 
111!  vacaiicloa  wliicli  must  occur  at 
sl.iiiii  unil  liuowii  ix'iioil.s;  anil  tliot 
tlio  expiration  of  a  ri'Hular  term  of 
siTvii'O  is  not  such  ii  contingency  as 
is  ciiiliracci!  in  tlu!  second  section  of 
the  llrst  article  of  the  Constitution. 
Tlie  I'ase  now  under  cousideratitm  is 
wlmlly  dilTerent  in  principle.  The 
time  when  Mr.  Sevier  was  to  go  out 
nf  ellicc>  uniler  his  eleiMlon  nnule  tiy 
the  l"f,'islature  of  Arkansas  was  deci- 
iled  liv  lot,  aRreeably  to  the  provisions 
(if  llie  Constitution  on  that  Bulijecl. 
.Ub'i-  th(>  decision  tlius  made,  the 
li'(;Uliiiuro  of  Arkansas,  not  ludiiK  In 
Hl's^ioil,  could  not  supply  the  vaeaucy  ; 
and  the  case,  in  the  opinion  of  lli<< 
ceiiindlloe,  conies  fairly  within  the 
lirevisioii  of  tho  Constitution  con- 
tiiiiied  in  tho  third  section  of  tlie 
lirsl  article,  which  declares,  'and  if 
viiciuieies  happen  by  resignation  or 
oilhTwise  duriiif?  the  n-cess  of  the 
h'^'i^-lature  of  any  Slate,  the  executive 
tlc'ii'of  may  make  teruponu'y  appolnl- 

nii'iits  uiilll  llie  next  i Una  of  the 

h't;islaturo,  which  sIkiII  then  till  such 
vacancies.'  The  conimiltei>  are  of 
oiiiiiiiin  lluit  Mr.  Sevier  is  entitled  to 
lii-i  seat  under  the  executive-  appoint- 
ment of  the  17th  of  January,  IMHT." 
The  report  of  tho  comniitlee  was  sus- 
tained by  a  vote  of  H't  to  I'.l,  Welisler 
ln'iiiK  in  tho  minority  (ihld.,  pp.  7-!)^. 

In  il (ISO  of  Charles  II.  Hell  i>r  New 

Haiii|i~lilre,  in  1H7'.I,  upon  tin'  expira- 
liiii  of  the  si'natorl.'il  term,  two  legls- 
lalnreshad  bi'cn  ele<'led.  The  Senate 
ha'l  adopted  tho  report  of   llio  Com- 


mittee on  Privileges  and  Elections 
that  the  legislature  last  elected,  but 
tho  term  of  which  had  not  yet  begun, 
was  entitled  to  elect  the  new  si'iiator. 
The  governor  appointed  Mr.  Bell  to 
1111  the  vacancy  bet  ween  tho  expiration 
of  his  predecessor's  term  and  tho 
supply  of  tho  same  by  tho  new  legis- 
lature after  Us  organization.  Tho 
Senate  by  a  vote  of  .'}5  to  2S,  which  was 
not  divided  upon  party  lines,  rejected 
tho  report  of  its  Conimittoe  on  I'rivl- 
leges  and  Elections  and  admitted  Mr. 
Bell  to  the  seat  (iliid.,  pp.  2i;-:i5). 
In  the  case  of  Henry  W.  Blair  of  Now 
Hampshiri",  in  187!),  a  similar  ruling 
was  niado  by  a  vole  of  36  to  20 
(ibid.,  p.  lU',;.  In  tho  cas(!  of  Horace 
Chilton  of  Texas,  in  IK!)],  the  gover- 
nor had  appoinieil  Jlr.  Chilton  to  llli 
a  vacancy  occasiouci  by  the  resigna- 
tion of  a  senator  t)ef(ire  tlie  period 
when  the  resignation  took  elVecl. 
The  (|uesli(Mi  was  raised  whether  tho 
governor  had  the  power  to  appoint 
Mr.  Clillton  before  the  lesigiiation 
took  elTcct.  The  Seiia'i  adopted  tho 
report  of  the  Ckimmittee  on  Privilegi-s 
and  Eli'clions,  and  ndmllled  Mr. 
Chillon  (ibid.,  pp.  4S  ni).  The  report 
cited  tJH"  case  of  Kohert  M.  Clinrlh^n 
of  Georgia,  who  was  thus  appointed 
by  tho  governor.  His  appointment 
<ook  elTect  from  ami  after  tie"  ditto 
for  which  hisiiredece^sor  had  resigned 
(Senate  ,Tournal,  1st  Session,  H2cl 
Congress,  11.  4(!H).  If  this  point,  con- 
s('i|ueiilly,  was  deeidi'il  in  I.amnan'.^ 
case,  it  was  then  I'orniMlly  over- 
ruled. The  matter  rested  thi're  until 
WX\,  when  tho  decision  was  made  in 
the  Montana  ease  of  Lee  Mantle,  which 
was  followed  at  the  same  session  in 
two  other  cases  arising  from  similar 
appointments  by  the  governineul  of 
Wasliiiigtou. 


4110 


rilK    SEXATK. 


[CII.U".  XI. 


its  expiration  is  tlie  liappciiiiig  of  a  vacancy  which  will  autlimi/e 
ail  a[)poiiUnient  by  the  State  executive.'''  It  has  been  iii'M  by 
llie  Senate  that  an  executive  of  tlie  State  may  appoint  a  seiiutni- 
to  lill  an  anticipated  vacancy  before  it  occurs.'**  The  groiiml 
of  the  tlecision  is  stated  as  follows  :  — 

"  The  iniportiiiit  consideration  is  that  it  mii.st  have  been  the  purpose 
of  the  frainorsof  the  Constitution,  as  it  is  clearly  for  the  public  intiTist, 
that  the  ollice  as  far  as  possible  should  .alwaya  be  tilled.  This  coiisid- 
enilion  applies  with  peculiar  force  to  the  otiice  of  Senator.  We  slioiiid 
1)1'  very  unwilling  to  establish  a  construction  of  the  Constitution  whicli 
wiiuld  make  it  certain  that  in  no  case  of  the  resignation  of  a  Seniilor, 
however  necessary  tiiat  resignation  might  be,  there  should  be  a  sueci's- 
Hum  without  a  considerable  interval.  This  would  bear  witli  pcciiiiur 
iiardship  upon  States  remote  from  the  seat  of  government,  and  niisilit 
determine  the  policy  of  the  country  in  great  emergencies  and  in  mattors 
peculiarly  affecting  particular  States,  when  such  States  were  but  pnr- 
tially  represented,  or  possibly  not  represented  at  all.  ...  It  luis  hocii 
suggested  tluit  if  tiiis  construction  be  established  it  will  be  in  the  jiowcr 
of  the  governor  of  the  State  to  provide  by  appointment  for  tiie  tilling  of 
future  vacancies  Icjiig  before  they  occur,  and,  therefore,  the  will  of  tlus 
j)e(iple  of  the  State,  as  it  exists  at  or  near  the  time  of  filling  the  vacMiicv, 
fail  of  being  carried  into  elTect.  But  the  instances  must  necessarily  Iw 
very  rare  in-'eed  where  the  vacancy  can  be  anticipated  beforehand  uiidiT 
circunistancn  which  will  create  such  tein])tation  to  the  executive. 
Against  tlia',  as  against  nniny  other  evils  which  are  possible  uiidei'  a 
popular  g,»vernment,  as  under  other  governments,  the  protection  in 
general  must  be  in  the  character  and  integrity  of  the  persons  clothed 
with  high  iiublie  ollice."  " 

Where  a  seinitor  has  been  appointed  by  the  executive  to  till  a 
vacancy  nnd  the  Icofislature  at  its  next  session  adjourns  liiiiilly 
without  an  election,  bis  term  thercui)on  expires.^  Tlic  adjouin- 
nient  of  the  legislature  until  the  date  when  its  existence  termi- 
nates is  eciuivalcnt  to  a  liinil  adjouriunent  within  the  ineanin!,' 
of  this  rule.-'     The  term  of  an  appointed  senator  expires  upon 


"  Si'vli'rV  C'ftse,  Taft's  Si'imto  Eloe- 
tlou  Cases,  continueil  l)y  Furbur,  pp. 
7-9,  Hupra,  nolo  16. 

'»  Case  of  Uriah  Tracy,  ibid.,  p.  3. 

"  Horace  Chilton's  Case,  lliid.,  p.  51. 

2»  Case  of  Sumuol  S.  i'hdpa  of  Ver- 


mont, in  IS.")!,  Tuft's  Seniito  Klpdion 
CttscB,  continuod  liy  Furbcr,  pp.  I'i, 
21 ;  caso  of  Jared  W.  Willliims  of  Xiiw 
Hanipshlre,  in  1H54,  ibid.,  pp.  '2:1,  '25. 

«  Caso  of  Jarod   W.    WllliaiiiH  of 
Now   Uiimpshlre,   iu   1854,  jip.  '2J-25, 


;<  SO.] 


CKNKKAL    OBSKUVATIONS. 


-11)1 


till!  pivscntnicnt  to  tliu  Suniite  of  tlio  credciitiiils  of  liis  succcs.oi', 
from  which  the  Littur's  iicceptiiiiuu  is  iiiijilied,  even  tlioiijrli  lie  does 
mit  iitti'iid  ;  providi-'d,  of  course,  that  he  lias  not  resigned  or  ac- 
cepted a  disqualifying  or  inconsistent  oiHi 


.,.•22 


g  80.    General  Observations  upon  tlie  Senate. 

During  its  earlier  years  tlie  Senate  of  the  United  States  acted 
as  if  it  were  au  executive  council,  a  j)ai  t  of  the  nienihers  of  which 
considered  themselves  to  he  anihiissadors,  rather  than,  as  lunv,  prin- 
ciiiidly  a  legislative  hody.^  Its  niend)ersliip  was  orighially  only 
t\\(iilv-t\vo,-^  a  nnmher  not  ill-suited  for  such   function.^.     It  fol- 


--('.180  of  Kolicit  C.  Winllirop  of 
Mii8s:ii'liiibelts,  ill  1851,  iliul.,  jip.  10- 

S,  SO.  '  "AttheoriKinoftlieGovi'in- 
iiioiil,  tho  Scimln  si'imikhI  to  lio  ir- 
(,'anli'il  flii(!ll,y  n.s  uu  cxci-iiUvo  cmin- 
<il.  'I'lin  rnsiilciil  ofioii  visili'd  tin- 
Cliiimlmr  anil  ('(iiifon-cd  iirrHoiiiiUy 
ttiili  this  bdily;  must  ol'  its  Imsiiicss 
was  traiisncli'd  Willi  cldscd  <loors  nnd 
it  tooli  (Mmiiniralivi'ly  litllo  iiart  in 
tho  IcKi-lutivi"  dclinli'K.  Th(!  rising 
and  vif^oroUH  Intellci'lrt  of  tin'  couiilry 
•iiiught  tho  arena  of  tlio  House  of 
KijircsiMitatives  an  tlio  apinopriato 
1  liiator  for  t  ho  diwplHy  of  thoir  ixnvois. 
Mr  Madison  oliMTVod,  on  soiiio  oci-a- 
,■-'1111,  Unit  lioiiifx  n  yomit;  itmii,  and 
di  ^irliiH  to  iiuToaRO  hi«  reputation,  lio 
iiiiild  not  all'onl  to  outer  Iho  Sonato; 
and  11  will  ho  lenioiiihorod,  that,  so 
lato  as  IHI'2,  tho  groat  dohali's 
which  piocodod  tho  war  and  nioiisi'd 
tho  oountry  to  tho  assorllon  of  its 
li^'lits,  toolt  iilai'O  In  tho  otlior  Ijiimoli 
(it  Congress.  To  such  an  o.\tont  was 
tlio  idea  of  Boi'liisloii  carried,  that, 
when  this  Chainhor,"  the  room  now 
occupied  liy  the  Supremo  Court,  "  was 
roiiiplotod,  no  Boats  wore  pii'parod  for 
thoacooinniodatioiiof  tho  puhlic;  and 
it  was  not  tin  many  years  aftorwanlH 
that  tho  piMiii-olreular  gallery  was 
crcctod  which  admits  the  people  to  ho 


witnesses  of  your  iirooeediiigs.  But 
now  the  Senate,  besides  its  pi'ouiiar 
relations  to  tho  executive  depart- 
ment of  tho  government,  assumes  Its 
full  share  of  duly  as  an  ecjual  luaiieli 
of  the  legislature;  indeed  fniin  the 
limited  iiuiulier  of  its  meiiiljprs,  and 
for  other  oiivious  reasons,  the  most 
iinportaiit  i|Ueslioiis,  ospeeially  of 
forei^jn  lolicy,  are  apt  to  pass  Urst 
under  diseiission  in  this  body,  and  to 
be  a  meiiilior  of  it  is  justly  regarded 
as  om^  of  the  highest  honors  which 
can  be  conferred  on  an  American 
statesman."  (Address  of  Vice-Presi- 
dent Ihvcliinriilgo  before  heaving  tho 
old  Senate  Chamber  for  tlio  new, 
January  4tli,  IH,')!),  Senate  .louriial, 
n.'itli  Congress,  2(1  Session,  ]).  '.Hi;  Con- 
gressional (ilobe,  IsriS -IS.")!),  Part  I, 
p.  20;i;  Furlior,  Procedents  relating  to 
I'rivlleges  of  tho  Senate,  p.  I).  See 
also  an  article  by  James  C.  Welling, 
in  the  National  Intelligencer,  Oetolior 
;H),  isr.s,  (pioted  in  Liobors  Civil 
Liberty,  cli.  .\iii,  apjiendix;  Uoutniy, 
Ktudes  do  Droit  C<iTistltutionnel,  pp. 
UH-12'2.  The  last  is  a  small  work 
which  shows  groat  learning  and  acute- 
ness. ) 

'■i  Only  eleven  States  wen-  at  llrst 
represented ;  North  Carolina  and 
Uhode  Islnud  rutlfyiag  subsequeutly 
(siipro,  §  29). 


492 


thp:  sexate. 


[chap.  XI. 


Idwcil  ill  iiiaiiy  respects  the  practice  of  tlio  colonial  councils.  Its 
sessions  wfiv  held  in  secret  until  Fehruary  20th,  1794,  except  on 
tliu  (liscus.sion  of  the  contested  election  of  Allwrt  Gallatin,  wliich 
h.'giin  nine  days  l)efore  ;  ^  and  it«  sessions  for  the  consideration  of 
executive  business  are  still  secret  except  upon  special  occasions.* 
During  its  early  sessions  the  Presith-nt  and  cabinet  ministers  fre- 
quently consulted  with  it  in  person,''  and  the  rules  still  piovide 
for  the  case  of  a  visit  from  tiie  chief  executive."  It  created  no 
standing  committees  until  1816.'  Since  then,  however,  its  func- 
tions liave  been  mainly  legislative,  although  it  has  guarded  witli 
great  jealousy  its  executive  prerogatives. 

In  tlie  diseliargo  of  these  it  has  developed  a  corporate  spirit 
which  tends  to  make  its  membei's  stand  together  irrespective  of 
party  lines  to  resist  any  attacks  upon  what  are  considered  to  be 
the  rights  of  each.  A  2)ractice  has  thus  arisen  which  is  known  ius 
senatorial  courtesy,  the  cardinal  principles  of  which  are  tliat  no 
nomination  siiall  l)e  confirmed  against  the  wishes  of  lK)tli  the  sen- 
atoi-s  from  tlie  State  wliere  the  candidate  resides,  provided  tliut 
they  are  of  the  .same  political  faith  as  the  executive  and  that  wlien 
a  senator  or  a  former  senator  is  noujinated  for  an  olTiee  lii'  sluiU 
be  immediately  conlirnied  witliout  a  reference  to  any  connnittee. 
Tlie  latter  ruU^  is  alnmst  invariably  observed.  'I"he  former,  the 
origin  of  whicli  may  l)e  found  in  Wasbington's  first  administra- 
tion,^ has  been  the  sul)jeet  of  many  contests  witli  the  executive. 


'  Fiirlier,  I'recoilpiils  rcliiting  to 
Privili'Kcs  of  ihi"  Si'iialo,  iip.  :)-5. 

*  SoiiaO' Kiile  XXXVI. 

5  Son  l[acl;iy,  Skoli'lp's  of  DiOjiito 
in  tho  First  Sciiutc of  i  lie  I'nil  I'll  Stat "s, 
'2d  I'll.,  |i,  I2i;  i'ur\>rr.  Precedents  of 
Priviieses  of  tlie  Senate,  p.  '.i.  In  IHIH 
tho  Senate  soiigiit  to  revive  tlie  prac- 
tice l)y  asliing  President  Madison  to 
attend  and  coMHult  witli  tlieui  upon 
foreign  alTairs:  hut  lie  declined 
(Wilson,  Congres'-ional  Government, 
p.  231,  not 01.  In  IKIC),  when  Presi- 
dent Polk  asked  tlie  advice  of  the 
Senate  concerning  a  proposed  treaty 
Willi  Great  Britain  relative  to  tlio 
Oregon    boundary,    ho    did   so   by  a 


secret  niessage  (lienton,  Thirty  Years 
in  the  Senate,  vol.  ii,  \>.  (17.")). 

0  Senate  Kule  XXXVI. 

'  "  ISefore  that  tiino  ttio  custom 
Iiad  been  to  refer  to  select  com- 
mittees different  juirts  of  tlio  Presi- 
dent's message,  and  these  were  practi- 
cally stuiidiiiK  committees.  Throe 
committees  e.\isled  before  ISlfi  :  'The 
Coniiuitlec>  on  Engrossed  Bills,  created 
111  1HI)(),  the  Coiiimitteo  on  Enrolled 
Bills,  which  was  a  joint  committee, 
and  the  Committee  to  Audit  and  Con- 
trol till'  Ctmtingent  E.xpenscs,  created 
iu  1807"  (Eiirber,  PrecediMitsn'lating 
to  Privileges  of  the  Senate,  p.  317). 

« The    nomination    of     Benjumia 


§  HO.] 


SKXATOUIAL   COUKTKSY. 


493 


mn:  of  wliich  was  so  bitter  tliat  it  caust-d  I'lvsidt'iit  rrarfii>li)  In  fall 
l)y  tiie  hand  of  an  assassin  ;  hut  in  tlu;  main  tlie  Senate  lias  tri- 
umphed. One  part  of  it  is  firmly  estahlislied.  Tiie  Senate  ha.s 
never  eontirnied  tlie  nomination  of  ii  postmaster  a<^ainst  tiie  will 
of  tlie  senator  who  lived  wliere  the  oIVkx'  was  situated.  It  insists 
that  eaeh  of  its  nieniheis  shall  seleet  the  man  who  delivers  to 
him  his  mail.* 

The  Senate  has  established  the  position  that  it  is  a  continuous 
body  alwa3S  in  existence,  wiiieh  does  not  need  a  new  organization 
every  two  yearn  nor  the  recommencement  tlien  of  all  business,  as 
does  the  House  of  Representatives. •"  So  the  two-thirds  who  bold 
over  exerci.se  the  exclusive  right  to  pass  upon  the  credentials 
and  qualifications  and  to  judge  of  the  elections  of  the  new  niem- 
bei's,  and  disputes  concerning  what  constitutes  a  prima  facie  claim 
to  a  seat  are  of  little  importance."  ^loreover,  all  proceedings 
upon  bills  there  introduced  continue  without  abatement  till  their 
final  disposition,  and  do  not  lap.se  by  tiie  expiration  of  a  Con- 
gress.'^ 

'I'his  permanency  of  the  Senate  and  the  length  of  its  menilieis" 
terms  hi've  given  it  a  dignity  possessed  by  no  other  legislative 
body  now  in  existence.  It  is  still  able  to  tiansai't  business  with- 
out the  application  of  the  previous  question,  or  closure,  as  it  is 


Fishljouriio  to  tho  post  of  naval  olTlcor 
(if  tho  port  of  Savariimh  was  rcjoctod 
at  tho  first  Hossion  of  Iho  Senate, 
August  4,  17H9,  "simply  Imcaiise  tho 
Goorjjia  senators  preferred  another" 
( lieiilon's  Aliri'Jgmcnt,  vol.  i,  pp.  IG- 
17  and  notes  to  p.  17).  'Wiishiiigton 
protested  in  B  message  nominating 
another  to  tlie  sanu>  olllee  (lljid.,  p.  17). 

'  The  last  iUustratioii  of  this  prao- 
tioo  was  tho  concession  hy  President 
€levelaiul  to  Senator  Hill  of  tho  selec- 
tion of  the  postmaster  at  .\llmny, 
New  York,  in  1S!)5.  By  insisting  upon 
this  principle  Charles  Sumner  secured 
the  appointment  of  tho  historian 
Palfrey  to  tho  Boston  post-olllce  liy 
Lincoln. 

">  See  tho  debate  in  tho  SiMiate  on 
the  Removal  of  the  Public  Printer,  in 


1841,  esi>ecially  tho  remarks  of  Sena- 
tors Buchanan,  Allen,  Biiyaiil  and 
Silas  Wright  (CongrossioniiKilolie,  vol. 
Ix,  pp.  2;i0-2r)fi). 

"  Il)id.,  Taffs  Senate  Eleclion 
Cases,  continued  by  Furlier.  In  Indi- 
ana, where  one-half  of  llie  Senators 
hold  ov(>r  and  two-tliinls  coiistitule  a 
i|Uoruiii,  and  New  Jersey,  whore  two- 
thirds  liold  over  and  the  provisions 
of  tho  State  whieli  alTeet  the  jioini, 
»io  similar  to  those  in  the  Federal 
Constitution,  it  seems  that  a  different 
rule  prevails.  (See  the  opinion  of 
.Irdgi-  Niblack  in  Robertson  r.  The 
State  cere?.  Smith,  10!)  Iiul.,  7!),  123; 
State  r.  Kogers,  56  N.  J.  Law,  480, 
52'J-,'-);ttl. ) 

'^  Ibid. 


494 


Tlir:   SKNATK. 


[  'IIAIV 


XI. 


ti'iint'd  in  iMirope,  uiid  iiltlioiigli  since  tlio  ailniinistnition  of  Tv  Ici,, 
Avlieu  Clay  attenipted  to  i;iiani,a!  tlio  rules  so  as  to  unable  a  nnijor- 
ity  to  cut  olT  debate,!'^  numerous  efforts  in  that  direction  li;ive 
been  made,  all  bitlierto  have  failed."  The  reports  of  it.s  ((Hii- 
niitteos,  especially  those  on  the  Judiciary  and  on  Privileges  ami 
Elections,  contain  discussions  of  questions  of  constitutional,  statu- 
tory and  conunon  law  winch  are  excelled  only  by  the  opinions  (if 
tiu'  Suitrcnic  Court  of  the  United  States.  There  is  on  the  wluili! 
a  stability  and  consistency  in  its  decisions  upon  disputed  ques- 
tions involving  a  construction  of  tlie  Constitution  superior  to 
those  not  only  of  tlie  llousc  but  of  the  highest  courts  of  alinosl 
all  the  States ;  while  ui)on  the  trial  of  impeachnients  it  has  been 
proved  that  a  controlling  part  of  its  niemlwrs  are  able  to  divest 
themselves  of  partisanship  and  act  judicially,  although  the  poli- 
tical factions  to  which  they  belong  have  a  vital  interest  in  the 
result.'" 

Although  there  has  been  no  need  of  its  interposition  to  protect 
the  small  from  any  encroaciunent  by  the  larger  States,  until  the 
Civil  War  the  Senate  was  more  conspicuously  the  guanlian  of 
State  rights  in  general.  Their  advocates  maintained  the  iiositicm 
that  the  body  was  an  .assembly  of  aml)assadors  from  sovereign 
States.  During  Washington's  administration.  North  t-aroliiia 
directed  her  senators  to  execute  a  deed  ceding  land  to  the  United 
States  i'"  Senator  'I'a/ewell  of  Virginia  declined  Jackson's  offer  .if 
a  place  in  the  cabinet,  and  said  :  — 

"  II:iviii<;  iK'cn  clcctcil  n  senator,  I  would  as  soon  think  of  tiikini:  ;i 
place  under  (icorge  1\'  if  I  was  sent  as  miuister  to  Lis  court,  as  I  wouiil 
to  take  a  place  in  tliu  cabiuet."  " 

Insistence  has  fre(|uently  been  made  upon  the  right  of  State 
legislatures    to  insliiict  their  senators    in    Congress.'*     In   18<KS 


"  Benton,  Thirty  Y.'iiis  in  tlio 
Senate,  vol.  ii,  |i|).  2(1)  257. 

>*  See  Fmlji'r.  Pri^codi'iits  llelntinR 
to  Privileges  of  llio  Sc'uati",  jip.  217- 
23(t,  luul  tlio  proci'etlings  iu  tlio  suiii- 
iiier  of  18!)4. 

i-'  Infra,  §  90. 

'■  U.  K.  St.  at  L.,  vol.  1,  pp.  100- 
X09. 


"  .Tames  A.  Hamilton,  Reiuiiiis- 
(•(^nees,  p.  i)0. 

>»  Boiilmy,  ftudes  do  Droit  Consti- 
tiitiouiii'l,  |ip.  Ill),  120.  The  belief  in 
the  rii;lit  of  iiistnietion  to  a  repre- 
sentative hy  his  consliluents  was  vei  y 
eoiiimoii  ill  the  Tliiited  Slates  diirin;; 
the  ei.uhteeuth  century.  Members  cif 
Congress    under    the    Coufedoralion 


,<  HO  ] 


INSTIiUC'TlONS. 


496 


.Inliii  (^iiiiicy  Adams  resigned  after  voting  for  the  cmliargo  in 
ii|i]io.lti(in  to  the  wislies  of  liis  constituents.  A  senator  in  lS:i8, 
iilUT  arguing  against  thu  'J'arift'  of  Abominiitions,  said,  "a-i  tiie 
nigin  of  tile  State  of  Kentucky  lie  felt  liiniself  l)onnd  to  siirriMider 
liis  individual  o])inion,  and  express  tiie  opinion  of  liis  State."'* 
Joiiu  Tyler,  in  183G,  before  he  was  President,  resigned  his  place 


(•iiiisiilcri'ilthoiiiHclvcsljouiKl  liy  thom. 
'I'lir  D.liiwurc*  iloli'KiitcM  to  tlio  ^^'(l- 
iTilCdiiviMilioinvon'inMtrurliMlon  oni) 
iniini  Elliiil's  Dcliiilcs,  '2il  I'll.,  vol.  v, 
[1.  lliri:.  Ni'iirly  all  till;  iiipiiiliorsot  thu 
SiiitiM'oiivt'ntions  of  nitilW'iition  wcro 
iiisinic'tpil,  anil  llio  voti's  of  soiuu  Vir- 
Ciiiiiins  ill  fuvor  of  riitlllciition  anil 
in  violation  of  tlioir  iiialriirtionH  liaw 
lii'on  tho  pauHo  of  niui'h  roinpliiinl  as 
a  lncMch  of  faith.  Tho  Lost  rrinoiplo, 
li.v  Harliarossa  (Scott),  pp.  ICil-K!!), 
.\\'\:  II,  pp.  151»ir.4;  Libhy,  Cioo- 
j-'iMpliiral  llistrilmiion  ofVoti'on  tho 
f.iliTdl  Con-stilntion,  pp.  77.  H7,  94. 
S'l'  also  WoriM'slcr  JIaHazino,  vol.  ii, 
p.  117;  North  .Vnifiican  Kcvicw,  vol. 
iv,  p.  22:!,  liy  J.  (K  Palficy ;  Aincrlcan 
(JiiartiTly  liovirw,  vol.  v,  p.  41;  So. 
Lit.  Mo.ss.,  vol.  11,  i)p.  40,5,  530,  (S2;i, 
liH4;  vol.  ill,  p.  ;t!»;  NIIch'  llcj,'.,  vol. 
xxviii,  pp.  my,  200,  210;  nciiioiTatii! 
Kovimv,  vol.  ix,  p.  I'M.  Hamilton  in 
till'  Ni>w  York  t'onvcntlon,  Kliiol's 
Dcliati's,  vol.  ii,  p.  2.'i2.  In  Enf,'lan(l 
thi'  ri^ht  srnm8  to  have  bocn  ori'a- 
sionaily  rccogiiizcMl,  allhoii;,'h  it  hail 
Inii^'  lii'ciiclisiisi'il  in  17H0,  whi'n  liurko 
niailc  hi.s  famous  S|)<'rch  to  tlio  cioc- 
lors  of  Jiiislol,  A  papor  In  Sliaftos- 
liiiry's  hanilwritiii.moiitaiiis  "Iimtrur- 
tioMs  for  Moinliora  of  r.-irlianu'nt  fiiini- 
iiiiiiiimI  for  JIarch  21,  lONl,  anil  to  Im 
hold  at  O.xford."  It  lii'^ins  :  "(Jontlc- 
ini  II .  _  Wo  have  choKon  you  two  our 
linii<ht8  to  rppri'srnt  this  county," 
I'll'.,  and  procfrds  to  Inform  them  that 
thi'y  arn  oxpoi'ti-il  (I)  to  insist  "  to  tho 
lust "  upou  an  Exclusion  Hill ;  (2)  to 
demand  an  adjustment  of  tho  king's 


proroRativn  of  railing,  proroguing  and 
dlKSoiving  rarllamont  with  tin'  riglits 
of  tiio  pi'oplo  to  luivo  aijiiual  I'arlia- 
nit'nt,aMil  (.!)  to  rpstoro  lo  the  country 
"  that  lilicrty  whii'li  wo  and  our  forc- 
falhiM-B  liavo  I'lijoyi-ii  until  tin'  la.^t  I'orly 
yi'ars,  of  lioiiig  frno  from  guards  and 
morccnary  .soldiers  "  (Traill's  Siiafti's- 
hury,  p.  17;il.  In  Europo  tlio  custom 
was  very  prcvaicnt.  "  In  tho  Dutch 
United  rrovinces  the  meiuliers  of  tho 
Stales-Gi'iu'ral  were  mere  doh-gatos; 
and  to  such  a  length  was  the  lindrino 
carried,  tluit  when  any  impurtanl 
question  arose  which  liad  not  been 
provided  for  in  tlieir  instructions, 
they  liad  to  refer  back  to  their  constit- 
uents, exactly  as  an  amliassador  does 
to  the  governnieMt  from  which  he  is 
accredited"  (Mill,  Representative 
(loverument,  eh.  xiii.  The  cahifrH  of 
thiv  members  of  tlio  Frendi  National 
Assendiiy  are  well  known  (^see  Kf-- 
sume  g'u'ral,  on  extrait  des  cahiers, 
pouvoirs,  Inst  ructions,  etc.,  remls 
par  les  divers  Uaillages,  Senichauscos 
et  pays  d'Htats  du  llo.vaume.  a  leiirs 
di'puti'a  h  rA8senilil''edi's  I'.tats-tr.'m'- 
raux.  Paris,  1789,  vol.  ii,  p.  2'.)).  The 
Constitution  established  by  tiie  Span- 
ishCortes  of  1812  recognii'.es  tlio  pow- 
ers of  attorney  given  to  deputies  by 
the  electoral  junta,  and  the  insertion 
of  special  instructions  in  tho  same 
(Articles  .180-382,  Uorgeaud,  Ktablls- 
semeut  et  Revision  des  Constitutions 
II,  LIvro  II,  ell.  II). 

"9  Benton,    Thirty    Years   in    The 
Simato,  vol.  i,  p.  95. 


490 


THE   SENATE. 


[CIIAP.  XI. 


in  the  Senate  because  the  Virginia  legislature  had  instnictcd 
him  to  vote  in  favor  of  the  expunging  resolution,  which  hu  odiild 
not  conscientiously  approve."'^'' 

Tliuse  doctrines  me  now  abandoned.  Tlie  senators  consider 
tiienisclv(!S  us  niiMnhcrs  of  an  ortlinarv  legislative  Ixxly.  'I'licy 
pay  no  more  attention  to  the  instruiilions  of  Slate  legislatures 
)li:in  do  nicndicrs  of  the  House;  and  in  fact  since  tlicir  terms  are 
longer  they  arc  nioic  incdincd  to  disobey  them.-' 

A  survey  of  its  position  thronghout  the  history  of  the  I'liited 
States  sliows  tiiat  tlie  Senate  has  maintained,  almost  witlioiit  in- 
tcrrnption,  the  resjieet  of  the  Ameiican  people,  and  that  it  1ms 
vindicated  the  wisdom  of  its  creation  ;^  while  State  senates  are 
usuall\-  more  despised  than  State  houses  of  assembly.  It  has  l)eeu 
shoin  of  l)ut  a  single  powci',  tliat  to  originate  general  appropria- 
tion bills,  wliicdi  the  House  has,  by  their  continuous  lejeetioa 
wlieii  sent  tliere,  refused  to  permit  it  to  exercise  successfully, 
altliongh  the  Senate  lias  more  than  once  recordeil  a  protest  assert- 
ing its  prerogative;^  but  in  practice,  through  its  power  of  anieiid- 
ineiit,  the  loss  is  rather  nominal  than  rcal.^ 


2"  SehuTz,  Clay,  vol.  il,  p.  101). 

'■"  Tho  liilest  illii.stialic)]i.H  of  this 
are  tho  nctimi  of  Si'iKitor  Lamiir  of 
Misslssiii|)|,  ill  lSS'2,  «lii'n  ho  rcfiiscMl 
til  VdiP  for  fren  silvci'  tlloll^;ll  ho  rc- 
qiieslivl  by  hU  Sliito  li'^isliidii'i',  ami 
nolwilhslmiiliiin  seeuroii  a  reeieetion  ; 
ai](l  tlio  recent  action  of  Si'iiator 
Sle'.viirt  of  Nevada,  wlio,  although 
oleelcd  us  a  I{e|)ulilicaii,  aniioiiiieed 
thai  he  had  joined  tho  Populist  party 
wilhout  ro.slKuinK  his  seat.  Tlio 
Kentucljy  houso  of  reprosontativps  In 
]H'.)4,  passoil  a  resolution  instructii.^; 
their  senators  to  vote  against  the  nom- 
ination of  Whneler  II.  Peckham  for  a 
place  in  th.o  Supremo  Court  of  thi' Uni- 
ted Slates  (Park  City  Times,  Bowling 
Oreen.  Ky.,  F(>li.  1,  1804). 

^- Mr.  Uryco  says:  "So  far  as  a 
strnngor  can  judge,  thoro  is  certainly 
less  respect  for  th(^  Senate  collectively, 
and  for  most  of  tho  senators  individ- 
ually now  than   there  was  eigliteou 


years  ago,"  in  1870.  (American  Cem- 
nionwealth,  Part  I,  ch.  xil,  note. 
Sec  also  Thi'  Senate  in  the  Light  of 
History,  The  Forum,  Novcmbiu,  IsiU.l 
Tho  writer  is  unable  to  observe  tlmt 
tho  Senate  has  fallen  in  public  respi'd 
as  much  as  the  House  and  tho  Slate 
lcgislatU''cK  since  that  time;  and  ho 
attributes  the  dccadcriei!  of  all  to  tlio 
fact  that  of  lalo  years  the  coinitry  hiis 
been  so  fortunate  as  to  have  few  po- 
litical questions  of  suflicient  gravity 
to  withdraw  the  ablest  minds  from 
business  euterpri.ses  and  legid  coiitro- 
voi'sios. 

"'  Furber,  Precedents  of  Privileges 
In  the  Senate,  i)p.  '282-310.  Si'c  Tho 
Conduct  of  Husincss  in  (^mgress,  liv 
Senator  George  F.  Hoar,  North  Amorl- 
can  Review,  vol.  c.xxvlii,  pp.  113,  115- 
110;  infra. 

■■'<  Seiuitor  Hoar  boliovea  that 
through  the  Houso  rule  which,  ui'"" 
tho  report  of  a  couforeuco  betwoea 


^  so.] 


GENERAL   OIISEUVATIONS. 


497 


Secure  in  the  confidence  tluit  tlie  poojilc  who  entrusted  tliein 
willi  power  will  not  mistrust  tliuir  use  of  it,  senators  liave  heen 
iiiiiiioved  by  the  threats  of  thi;  IIousi^  to  withhold  the  sujiplies, 
licl'dic  which  other  second  cliamhers  have  always  (juailcd ;  ami 
iiiivc  only  in  a  single  instance  yielded  tlitnr  judgment  to  such  in- 
tiiiiidatif)!!.^'  They  have  had  more  than  one  contlict  with  the 
executive  concerning  the  jin^iogatives  that  they  claimed,  of  which 
llic  lirst  was  at  the  opening  of  Washington's  administration,^'  and 
Ijiil  one.  President  Jackson,  has  finally  triumphed.''^  'J'heir  en- 
(TiMchnients  upon  the  power  of  appointment  to  ollice  have  sul>- 
ji  lied  them  to  more  criticism  than  any  of  thidr  other  actions;'-"' 
liut  llicy  have  l)een  in  tlie  main  successful ;  and  though  they  have 
thus  undoubtedly  excluded  a  few  wlio  would  have  done  good  jmb- 
lic  service,  and  in  minor  cases  liave  often  comj)elled  the  a])point- 


tlio  two  liodips,  allows  to  Its  coiisld- 
onil  1(111  immtMliiito  proci'dciiop  of  nil 
ol hiT  liiisincss,  iiiul  no doliatc,  thn  Seu- 
iitc  has  nctually  iiioro  UiIIikmico  upon 
i|i|ii(iprinliona  tlinn  tlio  Hoiisn  whloli 
oiininiilcs  them  (itild.,  pp.  IIH,  119). 

-•'  Whon  tho.v  liiTiiiiUed  tlio  piis- 
piijii^  of  tho  net,  of  ,Tniii>  IH,  1878  (20 
Si.  al  L.,  p.  llf)),  in  rolntion  to  tlio 
usi'  of  ttic  army  at*  a  ;h)«»c  romildtim. 
Sri'  ('(IX,  Tlirpc  DccadcH  of  F(Ml(-ral 
Lc-lislalion,  p.  (VM;  hifrii,  Ch.  XVI, 
and  ."iiiirit,  §  4ij. 

•"  Siipni,  note  8.  President  firaiit 
li.iiil  inoro  defi'renco  to  this  custom 
tliiiii  pciliaps  any  otlicr  o.xeoutivi!. 
Fnr  a  fcccnl  history  of  his  .sacMlllco  of 
a  ciiliiiict  olticcr,  in  order  to  olitain 
Vdlcs  in  Hup|)ort  of  tho  treaty  for  tho 
aniHxation  of  San  Domingo,  see  How 
.Tii(l,K('  Hoar  ceased  to  l)o  Attorney- 
'iciii'ial,  by  Jacob  D.  Cox.  Atlantin 
Moiilldy  for  AuRust,  18!)5,  vol.  Ixxvl, 
1>.  b'2.  In  18!t3  Senator  Hoar  said: 
'■  Wlicn  I  came  into  pulilic  llfo  in 
IHl'iH,  theS(.'Dateclninipd  almost  entin? 
tonti'iil  of  tho  exo('utivo  function  of 
ai)|"'inlnienttoonice.  Every  senator, 
Willi  lianl'v  an  exception,  seemed  to 
fancy  that  the  national  officers  in  his 


SUito  wt>re  to  be  n  band  of  political 
henchmen  devoted  to  his  personal 
fortunes.  Wluit  was  calbid  '  tho  cour- 
tesy of  thoSenatn '  wasdepimded  upon 
to  enable  a  senator  to  dictate  to  the 
Executive  all  appoinlmcnts  and  re- 
movals in  his  ti^rrltory.  That  doc- 
tiino  has  disappeared  as  completely  as 
thclocusts  that  inf(!stcd  K^ypl  in  the 
time  of  tho  Pharaohs  "  lOing-  Kccord, 
nnd  Congress,  vol.  x.\v,  p.  137,  April 
8,  18!)3).  Thi.s  was  before  the  late 
conllicl  between  the  Senate  and  Presi- 
dent Cleveland. 

*"  In  the  expunging  resolution 
which  is  discussed,  infra,  under  the 
head  of  the  Journal. 

2'  "  The  executive  department  has 
been  crippled ;  and  tho  inlluence  and 
power  of  Congress,  and  especially  of 
the  Senate,  have  beconio  far  (jrciitcr 
than  they  should  bo  under  IIk^  system 
of  proportion  and  baiaiu'e  embodied 
In  the  Constitution.  Dcspit(>  Jackson's 
victory  there  is,  to-day,  far  more  dan- 
ger of  undue  encroachments  on  the 
part  of  the  Senate  than  on  that  of  tho 
President "  (Honry  Cabot  Lodge, 
Lite  of  WoDster,  p.  230). 


4(18 


TIIK   SENATE. 


[CHAV.  XI. 


iiieiit  (if  uiiwortliy  (■andiiliitos,  in  hoiuc  noUble  iiiHtuiices  tlicy 
liiivf  siivi'd  Uitj  cKiintry  from  disgract'. 

The  a(!lioii  of  the  Se iiatc  upon  tioaties  has  usually  l)cen  coiisir- 
vativc,  has  at  times  protected  tlio  iutereHts  of  the  I'liited  Stutvs, 
and  lias  never  caused  serious  niisciiief.  In  it«  legislative  uitidP 
it  iiiis  fnililled  the  hopes  of  its  creator.  Tliere  has  boon  mviv 
sional  impatience  at  it*»  deliberations  over  measures  of  rclnriu 
demandeil  by  a  larjje  majority  of  the  people,  but  upon  the  wlmlo 
there  has  been  a  feelinp  that  little  harm  lias  been  done  by  tiui 
delay,  while  many  noxious  nieiusures  that  have  passed  the  IIiiiihu 
liavo  been  thus  defeat<i<l,  and  upon  reflection  no  attempts  liavo 
been  made  at  their  resurrection.'-'" 

In  one  respect  alone  is  there  any  sign  of  a  popular  demand  for 
a  change  in  cither  the  functions  or  the  construction  of  the  Semite. 
A  movemc7it  is  now  on  foot  to  sciiire  a  (constitutional  aniendiiifiit 
transferring  the  election  of  senators  from  the  State  legislatures 
to  the  people ;  and  on  account  of  the  facilities  for  intrigue  and 
bribery  which  are  afforded  by  the  [jrcsent  method  it  is  not  un- 
likely that  such  a  change  would  l)e  l)eiieficial.^  But  the  Seuatc 
of  the  United  States  will  prolxdily  endure  as  long  as  any  sccDml 
legi.«ilative  chamber  upon  the  earth.^' 


2"  As  early  an  170.3  n  iKin-lniportii- 
tlon  liill  iKisscl  til"  House  and  wuh 
(lefcUoil  by  till!  So-.iiit\>  (Morse,  .Tef- 
fcrsoii,  p.  ll'>7 '  Tiie  defeat  of  the 
Force  Hill  is  a  reci  m.  iiislaiice. 

''  An  UMieiiilmi;,!  to  tlie  Nebraska 
eoMstitutioM,  ailoplrd  in  1875,<irdaius  : 
"Till)  Lo^islaturo  may  provide  that 
at  the  Keiieial  eleetion  Immediately 
preiodinK  the  expiration  of  a  term  of 
a  United  States  Senator  from  this 
State,  tlio  electors  may  by  ballot 
express  tholr  prefereneo  for  some 
person  for  tlio  oIKlco  of  United  States 
S(>nator.  The  viito.s  east  for  such  oan- 
(lldales  shall  be  canvassed  and  re- 
turned in  the  same  manner  as  for 
State  officers."  For  orguments  in 
favor  of  sueh  an  amendment  see  the 
speeches  of  Senators  Turpie,  Palmer 


and  Mitchell  (Cour.  Record,  Ist  Ses- 
sion, r,'iil  fouKress,  pp.  70,  12('.7.  Win. 
.11!)2-;U9«.  .'1202,  320J,  70.32  i.  On  llie 
other  side  is  the  speech  of  Senator 
Hoar  (53d  Congress,  ibid.,   vol.   .\xv, 

I-.  i;i7). 

81  England's  last  prinu;  ininisliT, 
Rosobery,  himself  a  inembcr  ul'  tho 
Mouse  of  Lords,  has  said  tlml  llio 
St'nato  is  "  the  most  jiowerfui  and 
eiTlcient  Se<'oud  Chamber  that  exists" 
(Wilson,  Congressional  Govenuin'iil, 
p.  228).  For  discussious  of  th<'  Scnato, 
see  The  Federalist,  Nund)erH  Ixii- 
Ixvil ;  Story  on  the  Coustitiitio;.,  Pook 
11,  eh.  x;  Wilson,  Congressional  (iov- 
ernment,  ch.  iv;  Brjce,  American 
Commonwealth,  Part  I,  ch.  x-xii; 
Maine,  Popular  Goverument,  Essay 
IV. 


CHAPTER   Xn. 

Tin:  I'UESIDENCY  AND  OTIIEU  OIFICKUS  OF  THE  SENATE. 


{;  H I .    (JoiiHtitutioiinl  ProviNiuiiN  coiioernlnt;  tlio  PreMidency  niid 
Ofllcers  «>f  the  Hoiiatv. 

TitK  Constitution  oidiiins :  — 

••'riif  Vice  President  of  tlie  United  States  shall  be  I'lvsident  of  llie 
Semite,  Imt  shall  have  no  Vote  unless  tiicy  be  equally  divided.  The 
Senate  shall  ehuse  their  other  Ollleers,  and  also  a  President  pro  toui- 
pfiir,  in  the  Absence  of  the  N'iee  President,  or  when  he  shall  exercine 
the  Olllce  of  President  of  the  United  States."  • 


S  82.    History  of  the  Provisions  ns  to  the  Prosldeiioy  and  Offl- 
cerM  of  the  Senate. 

Tlio  presiding  officer  of  the  House  of  Lords  is  the  Lo7(l  ('lian- 
cellor,  wlio  iiiiiy  or  may  not  be  a  peer,  who  has  no  vote  unless  he 
lilts  a  seat  there,  and  cannot  enforce  order,  that  power  being  vested 
ill  the  house  at  large.'  In  the  New  York  Constitution  of  1777, 
the  president  of  the  State  senate  was  the  lit'utenant-govcinor, 
will)  was  elected  by  the  people  in  the  same  manner  as  the  gover- 
ijor,  whom  lie  succeeded  in  ease  of  a  vacancy.'' 

In  the  Federal  Convention  the  Committee  of  Detail  inserted  in 
their  report,  without  previous  instructions,  the  section  :  — 

"  The  Senate  shall  choose  its  own  President  and  other  odicers ;  "  • 

and  another  by  which  tiie  president  of  the  Senate  was  to  till  a. 
vacancy  in  the  chief  executive  office  until  a  new  election,  or,  in 
the  case  of  a  disability,  until  its  removal.*     These  provisions  were 


§  81.  '  Constitution,  Article  I,  Soc- 
ticii  11. 

S  H'2.  1  Poore'B  Charters  and  Consti- 
tuti' -18,  vol.  11,  p.  133G. 


^  Madison  Papers,  Elliot's  Debates, 
2d  ed.,  vol.  v,  p.  377. 
»  Iliid.,  p.  .180. 
♦  Ibid.,  p.  401. 


499 


.■)00 


rRESIDENX'Y   OE   Till!:   SENATE. 


[chap.  XII. 


at  first  adopted  without  di.ssent.  Tlio  election  of  tlie  Pie.sideiit 
by  liie  legisliiture  was  then  contemphited.  Tlie  ollice  of  \i(f- 
Piesideat  waa  invented  afterwards  us  a  device  which  it  was 
believed  would  secure  a  better  choice  in  tlie  election  of  a  Presi- 
dent. The  reasons  for  making  him  also  jjresident  of  the  Senate 
were  thus  stated  by  Roger  Sherman  :  — 

"  If  tlio  Vice  President  were  not  to  be  president  of  tbe  Seniito,  lie 
woiikl  be  without  employment ;  and  some  other  member,  by  bein^  niiule 
president,  mut-t  be  deprived  of  his  vote,  "nless  wlien  iin  vqwA  divisiuu 
of  votes  might  happen  in  the  Semite,  which  would  be  but  seldom."' 


§  83.    Powers  of  tlie  VIee-PresiOont  over  the  Senate. 

The  Senate  has  shown  great  jeah)usy  of  the  Vice-President,  and 
has  limited  his  powers  so  far  as  was  permitted  by  the  (.'onstitution. 
The  powers  to  supervise  tbe  journal '  and  to  ajjpoint  committees 
with  which  he  was  once  invested  have  been  taken  from  liiin.'- 
("alhoun,  when  Vice-President  in  18'2tJ,  at  tlio  time  when  Joiin 
Randolph  of  Roanoke  was  abusing  tlie  license  of  debate  by  gioiis 
personal  abuse,  declared  that  in  his  opinion  he  had  no  po\v<^v  to 
call  a  senator  to  (U-der  for  words  spoken  in  debate."  New  rules 
were  afterwards  adopted,  the  eonstrnction  of  which  was  doubtful 
as  to  this  point,  although  in  1850,  when  the  compromise  of  tiiat 
year  was  under  discussion  and  personal  controversies  not  infre- 


'  Madison  Pap«ir»,  Elliot'H  Dobntos, 
.'id  e<l.,  vol.  V,  p.  522. 

§  83.  '  .liiiniaiy  22,  1824,  the  Senato 
adojili'd  llio  rnU'  tliat  "Tlio  iiniKidinR 
olllcerof  tli('S(Mml(> shall  oxanilfieand 
corriM't  tlio  jcnii'iialrt  lieforo  they  aro 
read."  'I'hU  nilo  was  rescindod  April 
It,  1K20  (luihor,  rrocodents  Rolating 
to  rri\  ll('H('s  of  tlio  Seiiato,  ]).  103). 

■^  Tlio  (•oiiiiiiiltoort  wfio  originally 
eloctod  by  llio  Seiiato.  Divoiiibor  9, 
1823,  it  was  iTsolvod  that  "all  ('Olii- 
iiiittoos  gliall  lio  aiipoiiilod  by  Uio  pro- 
viding oltii'cr  of  this  House,  unl(>F9 
ordorod  otlic'i\vis(!  by  tlio  Sonalo." 
April  15,  1H2(1,  Ill's  nilo  was  losi'indod. 
December  4,  1828,  a  rulo  was  adopted 


by  which  comniittops  woi-o  iippointoil 
by  tlio  prosidoiit  pro  Ifmpore,  or  \\]\on 
that  olllco  was  vacant,  Ijy  ballot.  Dif- 
ferent rule.!  wore  adojitod  fiom  linn' 
to  tiiiio,  liy  sonio  of  wiiicli  tho  Vico- 
Presidont  was  aiitliorlzod  to  ninki'  111" 
appoinlnioiits.  Tho  present  rule  w.as 
finally  adopted,  which  provides  tliiil 
nnlesB  otherwise  ordered,  the  stand- 
ing coniniltlees  shall  be  appointed  hy 
ballot  in  thenianiier  therein  direrlcil 
(Rulo  XXIV).  It  is  custoiiiary,  lidw- 
ever,  to  suspi-nd  tho  rnloaud  uppninl 
them  by  resolution  (Fiii'lier,  rrece- 
dents  llelatlng  to  Privileges  of  tho 
benatc,  pp.  317,  335-311). 
8  Ibid.,  pp.  118.  119,  121. 


§83.] 


I'OWERS   OF   THE    VlCE-l'KEHlDENT. 


501 


(|iu'nt,  Fillmore  expressed  the  opinion  that  they  granted  this  power 
Id  liini.^     The  present  rnlos  provide:  — 

••  If  uiiy  Senator,  in  spealiiug  or  otherwise,  trausgresa  the  rules  of 
tlie  Senate,  the  Presiding  Ollicer  sliall,  or  any  Senator  may,  eall  him  to 
order ;  and  when  any  Senator  shall  he  called  to  order  he  shall  sit  down 
and  not  proeeed  without  leave  of  the  Senate,  which,  if  granted,  shall  be 
upon  motion  that  he  be  allowed  to  proceed  in  order ;  which  motion  shall 
lie  determined  without  debate."  ' 

The  Sc-  \te  has  always  refused  to  iiermit  the  Vice-President  to 
designate  a  senator  to  take  liis  place  during  a  temporary  absence  ; 
l)ut  has  usually  elected  by  unanimous  consent  the  man  whom  he 
selected.  * 

Otherwise  the  Vice-President  or  the  President  pro  tempore  of 
the  Senate  has  all  the  powers  usually  exercised  by  presiding  offi- 
cere  at  the  time  of  the  adoption  of  the  Constitution ;  including  the 
right  to  recognize  a  senator  who  wishes  to  speak,  and  thus  to  give 
him  the  floor,  and  the  right  to  put  the  question,  so  far  as  they  are 
not  limited  b^'  rules  of  the  Senate  which  are  in  conformity  with 
ilie  Constitution.  In  18114,  when  Lieutenant-Governor  Slieehan 
liiid  refused  to  put  the  question  as  ordered  by  a  majority  of  the 
New  York  senate,  that  body  held  that  he  had  thereby  abdicated 
his  position  for  the  time,  and  the  (piestion  was  put  by  the  leader  of 
tiic  majority.  The  New  York  Constitution  of  18!)4.  on  account  of 
these  proceedings,  orda"  ;  that  the  temporarj-  president  of  the 
senate  shall  preside  "in  case  of  tiie  absence  or  iuqieaehnient  of 
tiie  LieutenantrCJovernor,  or  when  he  shall  refuse  to  act  as  I'resi- 
ileiit  or  shall  act  as  Governor."  " 

The  senator  who  thus  put  the  question  was  chosen  by  the  people 
to  tlie  position  of  Lieutenant-Governor  that  same  year. 

The  Vice-President  may  give  tlu!  ciisting  vote  upon  the  decision 
of  a  contested  election  to  the  Senate.* 

Tiie  oftice  of  Vice-President,  with  the  mode  of  his  election  and 
tlie  jiroeeedings  upon  his  succession  to  the  presidency,  will  be  ilis- 
cussed  later. 


*  IbUl.,  pp.  120-122. 
'■  Hulo  XIX. 

"  Finlier,  Precndenta    Rotating  to 
I'rivllogeg  of  tho  Senate,  p.  IfiT. 


'  Art.  Ill,  8oc.  10.  May,  Law  of 
Parliiuimnt,  lOLh  ed.,  |).  IHfi. 

'  Louisiaua  Ciisch,  Spoffoni  i'.  Kcl- 
l"gg,   Taft's  Senate    Election    Cases, 


THE  SENATE. 


[CUAP.  Xll. 


g  84.    The  President  pro  tempore  of  tlie  Senate. 

At  the  firat  session  of  the  Senate,  they  proceeded  by  ballot  to 
the  choice  of  a  jiresident,  for  the  s<ile  purpose  of  opening  and 
counting  the  votes  for  President  of  the  United  States.  After  the 
withdrawal  of  the  House,  they  then  proceeiled  to  the  choice  of  a 
president  of  their  body  pro  tempore.'  The  length  of  the  to''"i  of 
the  president  pro  tempore  was  at  Ih-st  unsettled  ;  and  -J  .  n, 
arose  after  the  passage,  of  the  act,  since  repealed,  which  ,  .cc  ,  .,.,e 
president  pro  tempore  in  the  line  of  succession  to  the  presidency 
of  the  United  States,  for  the  Vice-President  to  vacate  the  clwir 
immetliatuly  l)efore  the  close  of  each  session,  in  order  to  enable  the 
Senate  to  choose  a  [jresident  pro  tempore.^  IJy  the  uniform  prac- 
tice of  the  Senate  until  1H90,  the  term  of  the  •  lesident  pro  teniixire 
was  treated  as  terminated  upon  the  resumption  of  the  chair  by  the 
Vice-President ;  and  it  was  understooil  that  it  was  also  detennined 
at  the  meeting  of  the  Senate  after  the  fii-st  recess."  The  Senate 
has,  however,  come  to  the  following  decision  upon  the  subject :  — 

"  That  the  tenure  of  the  President  pro  tempore  does  not  expire  at 
the  meeting  of  Congress  after  tlie  first  recess,  the  Vice-President  not 
having  appeared  to  take  the  chair."  "That  the  death  of  tiie  \"wc- 
President  does  not  have  the  efl'ect  to  vacate  tlie  olllce  of  President  pio 
tempore  of  the  Senate."  "  That  the  otlice  of  President  pro  teni|)ore 
of  tlie  Senate  is  held  at  the  pleasure  of  the  Senate."  *     "  That  it  is  coin- 


m 
3 


continiiod  tiy  Fiirbor,  pp.  471,  490; 
Covbin  r.  T.iitler,  il.id.,  r.H,  543. 

§  84.  '  Journiilof  Si'niitc,  vol.  1,  p.  7  ; 
Furlior'.s  Pri'codi'nls  Ilcliiting  to  the 
Privili'Ri'sot  Ihc  Si'imtc,  l(i7. 

-  Fii'st  Sosslciii  411(1  CiiiiKross;  Son- 
ata Misi't'UiineoiiB  Documents,  No. 
101  ;  Fiirlii-r,  Piocedi'iitu  llclating  to 
t\m  Privileges  of  the  Si'nato,  172. 

3  ■TolTiM's<iii's  Manual,  §  9;  1st  Ses- 
fll()n,44lh  r<)Tif;roHB,  Si'nnto  Ilcpoit,  ;> ; 
Furlicr,  Pri'ii'dciils  UclatiiiK  to  Priv- 
Ilegi'H  of  tlio  SpiihIi',  p   !7t".. 

*  Thn  first  two  of  tlic'80  nisolutlonB 
were  adoptwl  unanimously;  the  last 
by  a  vote  of  34  to  IC ;  after  the  rejec- 
tion of  ft  proposition  to  amend  the 


same  by  nddinR  the  claiiso;  "riitil 
tho  happiviii  of  tlio  oontliigtMii'v  jiio- 
vlded  for  in  lii  ■  9lli  Section  of  tho  act 
of  Congress,  approvt'd  Slanli  1,  17!i2, 
when  lie  is  authorized  to  act  us  Pns- 
ident  of  the  United  States.  iJnniiiiry 
10th  and  12th,  1876,  1st  Session,  41th 
Congre.ss,  Journal  of  Senate,  pp.  9i), 
99;  Cong.  Record,  311-31(!,  SCO  117:1, 
Senate  lleport,  3  ;  Fiirber'sPreccilerils 
Relating  to  Privllej,;eH  of  the  Seiinte, 
l)p.  173  1S2,  where  all  the  previ.ni? 
precedents  ujion  the  subject  are  ci" 
leeted.)  A  State  case  of  doulitfii. 
authority  holds  that  n  pourt  iiiny.  in 
an  information  on  the  nature  of  .iquo 
warranto,  determine  tiiu  Mllu  to  tho 


^  S4.] 


PKESIDKNT   PRO   TEMl'OUE. 


603 


lictoiit  for  the  Seriate  to  elect  a.  President  pro  tempore,  who  bIiuU  hc)!<l 
(illice  during  tha  pleasure  of  the  Senate  and  until  another  is  elected,  mid 
sliall  execute  the  duties  thereof  during  all  future  absc'iicea  of  the  Vice- 
rrt'sident  until  the  Senate  otherwise  order.'' ' 

It  has  been  further  held  by  the  Senate  tliat  in  the  absence  of 
express  authority  conferred  ))y  rule,  neither  the  Vice-President 
iiiir  tlie  jjresident  pro  tempore  has  tiio  ngiit  to  <K'sin;nate  a  senator 
to  t;ike  t!ie  chair  during  his  temporary  absence.''  The  rules  now 
pnivide  tiiat :  — 

"  The  President  pro  tempore  shall  have  the  right  to  name  in  open 
M'liiite,  or  if  absent,  in  writing,  a  senator  to  jierforni  the  duties  of  the 
chair;  ijut  such  8td)stitutioi>  shall  not.exteiid  lieyoiid  an  adjournment, 
I'xecpt  by  unanimous  consent."'  "  In  the  absence  of  the  Vice-Presi- 
dent, and  pending  the  election  of  a  President  y.-.j  tempore,  the  Secretary 
1)1'  the  Senate,  or  in  his  absence  the  Chief  Clerk,  shall  perform  the  duties 
of  the  chair."  ' 

Tlie  president  pro  tempore  may  resign  that  oflice  while  retain- 
iiiL,'  his  ollice  as  senator.  His  resign. 'tiun  slionld  be  adch'cssed  to 
tin-  Senate.'*  The  president  pro  tempore  of  the  Senate  retains  liis 
r;i,dit  to  vote  upon  all  questions  before  tlie  Senate.'"  In  tliis,  he 
(litt'eis  from  tlie  Vice-President,  who  can  only  vote  in  case  of  a 
tie."  The  presiding  oilicer  of  the  House  of  Lords  can  never  vote 
iuless  he  is  a  peer.'^ 


•  '<i'  of  president  of  tho  State  sanate 
'.'.ii.'M  lliiTO  are  two  cliiimniitH  oloctccl 
■"•  (lilTei'oiit  lioilirs,  ciicli  of  wlilch 
<'iMiin»  to  Ih>  (!ih  Irun  siMinlo.  Sliilo 
r.  Jtiigors,  50  N.  J.  Liiw,  4H0  ;  infra,  Vb. 
XVI. 

'Till'  ri'Kolution  was  drnwn  liy 
St'imtor  KviirLs  iiiid  rrportod  liy  hliii 
friim  tho  C'omiiiittco  on  l'rivih>}jos  iind 
KIocUoiib;  and  was  mloptt'd  by  tho 
Si'iialo  witlioiit  a  call  of  llin  yc.-m  and 
nays,  lliirch  l'2tli,  WM)  iCinKn'Hsionnl 
Ki'|i(irl,  1st  Sossioii,  r)lt.t  Coiif^rcss, 
21U-2150;    Furbor,    1'roi.oUoutB    llu- 


latln^  to  PrlvlloRos  of  tlio  Sonate,  jip. 
18;i,  IHH. 

«  Sc'i'  Fiirlii'v,  Prccodouts  Ri'latlng 
to  Privileges  of  the  Scuate,  pp.  IHO- 
1H!>. 

'  Seimto  Rule  I. 

"  Iliid. 

»  Furlicr's  Procodents  Uclntlrig  to 
Privdcfucs  of  the  Senate,  181-lSG. 

1"  Uesolullon  of  Jliirch  1!),  1792; 
Journal  of  Senate,  vol.  i,  p.  4'2!). 

"  ronstlliition,  Artiele  I,  Section  3. 

'-  May's  Law  of  Parliamuut,  2d  od., 
p.  1%. 


504 


THE   SENATE. 


[chap.  Xll. 


§  85.    Other  Officers  of  the  Senate. 

The  otlier  officers  of  the  Senate  are  in  general  the  same  as  the 
officers  of  the  House  of  Representatives,  perform  similar  duties, 
and  are  subject  to  the  same  liabilities.^     They  may  be  removed  at 
pleasure  of  the  Senate  at  any  time.^     The  officer   wlio  per- 
ns tlie  duties  of  clerk  is  termed  the  Secretary  of  the  Senate. 


§  85.  1  Supra,  §  73. 


2  Cliff  D.  Parsons  (Iowa),  57,  N.  W.  Kep.,  599. 


CHAPTER  XIII. 

IMPEACHMENT. 


g  80.    Provisions  of  the  Constitution  Concerning: 
liiipeHcliinent. 

The  remainder  of  Section  3,  of  Article  I,  provides  for  the  trial 
of  iiiiiieachnients.  For  convenience  all  the  parts  of  the  Constitu- 
tion which  relate  to  impeachments  will  be  here  grouped  and  dis- 
cussed together.     They  are  as  follow :  — 

"The  House  of  Kepresentativ'es  shall  chuse  their  Speaker  and  other 
Ollicers;  and  shall  have  the  sole  Power  of  Impeaclimeut."  *  "The 
Sciiiiti!  shall  have  the  sole  Power  to  try  all  Impeachments.  When  sitting 
for  that  Purpose,  they  shall  be  on  Oath  or  Atlirmation.  When  the 
President  of  the  United  States  is  tried,  the  Chief  Justice  shall  preside; 
uiul  no  Person  shall  be  convicted  without  the  Concurrence  of  two-thirds 
of  till'  Memliers  present.  ,Tudgment  in  (';ises  of  Iinpeaclnneiit  shall  not 
exti'iid  further  than  to  removal  from  Ofllco,  and  dis(pialiiication  to  bold 
aud  I'lijoy  any  Olllce  of  Honor,  Trust  or  Profit  under  the  I'nited  States  : 
Imt  tlie  Party  convicted  siiall  nevertliolcss  be  liable  and  subject  to  In- 
ilictiiiont.  Trial,  Judgment  and  Punishment,  according  to  Law."'^  "In 
t';isc  of  the  liemoval  of  tlie  President  from  Olllce,  or  of  his  Deuth, 
Kesiirnatiou,  or  Inability  to  discharge  the  Powers  and  Duties  of  the 
8!iid  Otilce,  the  Same  shall  devolve  on  l.e  Vice-President,  and  the 
Coiiirrcss  may  by  Law  provide  for  the  Case  of  Removal,  Death,  Hesig- 
iiiition  or  Inability,  both  of  the  President  and  Vice-President,  declaring 
wliat  Ollieer  shall  then  act  as  I'residont,  and  such  Ollicer  shall  act 
aci'orilin<i;ly,  until  the  Disability  be  removed,  or  a  President  shall  be 
elected."'  "The  President  shall  be  Commander-in-Chief  of  the  Army 
mid  .N'iivy  of  the  I'nited  States,  and  of  tlie  Militi.T  of  the  several  States, 
wlien  called  into  the  actual  Service  of  the  United  States  ;  he  may  require 
tlie  Opinion,   in   writing,    of   the  priucii)al  Olllcers   of    the  Executive 


!!  Hfi.  1  Article  I,  Soetion  2. 
s  Article  I,  Section  3. 


«  Article  II,  Section  1. 


505 


506 


IMPEACHMKNTS. 


[chap.  .\II[. 


l)i'|)iU'tiiu'iit3  upon  any  Snbji-ct  reliitin<5  to  tlio  Duties  of  their  respt'ctivi' 
Olllces,  and  lie  siiall  Imvo  Power  to  grant  Keprieves  and  Pardons  for 
OnVnces  ii;j,ainst  tiie  United  States,  oxee])t  in  Cases  of  Inipeaelnni'iit."* 
"'I'lie  President,  \' ice-President,  and  all  civil  otllcers  of  tlie  I'.iiii'il 
IStates  shall  be  removed  from  Ollice  on  Impeachment  for,  and  C  mi- 
victio  \  of,  Treason,  Hribery,  or  other  high  Crimes  and  Jlisdemeanor.-;."' 
"  Tlic  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall  he  \>y 
Jury.  '« 

Similar  provisions  are  found  in  most  of  the  State  constitutions, 
altlioutfli  some  provide  for  the  impeachment  of  former  oilicei's 
wlio  arc  out  of  office  ;"  others,  tliat  the  effect  of  an  impcacimu'iit 
shall  be  to  suspend  from  otilice  the  person  affected;'*  ollici's  pre- 
scrilx!  the  practice  with  more  or  less  detail,  and  in  New  Yoik 
there  is  a  special  Court  for  the  Trial  of  Impeachments,  wliicli  idii- 
sists  of  the  senate  with  its  president  and  the  judges  of  the  Court 
of  Appeals.^ 

§  87.    Oriifin  uf  ImpeacliiiientH. 

Impeachment  trials  are  a  survival  from  the  earliest  times  of 
jurispruilence  when  all  cases  were  tried  before  an  assembly  of  tiie 
citizens  of  the  tribe  or  State.  Later,  ordinary  cases,  botli  civil 
and  criminal,  were  iissigned  to  courts  created  for  that  pnr|i()st', 
but  matters  of  great  public  importance  were  still  reserved  for  the 
decision  of  the  whole  body  of  citizens,  or  subsequently  of  tlic 
council  of  elders,  heads  of  families,  or  holders  of  fiefs,  'i'iiis  was 
due  i)artly  because  in  eases  of  this  character  there  was  dangir  of 
undue  influence  in  the  decisions  by  the  ordinaiy  courts  ami  of 
resistance  to  the  execution  of  their  decrees,  and  partly  because 
tliey  aft'ccted  public  as  well  as  private  interestjs.  In  Athens,  nil 
citizens  vot«d  on  the  ostracism  of  a  man,  which  was  his  exile.  In 
Rome  and  in  most  other  ancient  cities,  those  charged  with  (^anitiil 


«  Article  II,  Section  2. 

6  Arlii'lo  II,  Section  4. 

«  Article  III,  Soc'tion  2. 

'  New  Jersey  Constitution  of  1844, 
Art  V,  Hec.  11.  See  Vermont  Consti- 
tution of  17H6,  Art.  XXI ;  and  injra. 

»  North  Dakotii,  Art.  XIV,  Sec.  190; 
South  Dakota,  Art.  XVI,  Sec.  5  ;  Rhode 
Island,  Art.  XI,  Sec.  1 ;  South  Carolina, 


Art.  VII,  S(^c.  1 ;  Texas,  Art.  XV,  Sw.  5. 
So  formerly  in  ArkansaH  and  I'loiida. 
See  infra,  §  88,  note  17,  and  Apiicn- 
dix. 

9  Art.  VI,  Snc.  1.  Fur  iirovisions 
concerning  inipeachments  In  tho  con- 
stitutions of  other  countries,  scesii- 
pra,  §  77,  note. 


•] 


ORKilN. 


MJ 


(ilTiiiscs  liiul  tli(!  riu^lit  to  ii  trial  l)y  the  people.'  The  rrrmt  coun- 
cil-, (if  the  (iei-maiis,  in  the  time  of  'J'acitus,  tried  capitil  cases  hy 
ii  ]iriiiee(hnfT  aiiak)(^()ns  to  an  appeal  Ijefore  tlie  EiiL;lish  House  of 
l,ui(l-i.'''  Such  a])i)cal8  liy  individuals  seem  to  have  been  coiuiuon 
miller  the  first  Norman  kings.  In  tiie  reitrn  of  Richard  II,  the 
l,oi\l  Cli.incellor  was  thus  tried  on  the  accusation  of  a  li-]imi)Ufi;er 
fur  lakinf^  bribes  in  the  form  of  money,  cloth  and  fisli.'"'  'I'liese 
wiic  abolished  by  tlu;  act  of  1  Henry  l\\  c.  ]4.*  ^Icauwliile, 
iiii|irachineuts  instituted  b}'  the  Commons  an<l  tried  before  the 
Liii.is  liad  Gfradually  come  into  use.  Tlic  iirst  instances  occurred 
Iji'iwcen  tlie  be_£finnini,'  of  the  reign  of  Edward  I,  and  the  iiftieth 
yci.r  of  the  reign  of  Edward  III ;  but  the  practice  was  then  irreg- 
ular and  is  obscure.''  Tliey  seem  more  like  bills  of  attainder  than 
tiials  of  imj)eachments.  The  first  known  case  of  a  trial  by  the 
Liiids  u])on  a  definite  accusation  by  the  Commons  was  in  the 
(iiKid  Parliament,  under  Edward  HI,  in  l;!.")!!.  Lords  Latimer 
and  Neville  with  several  of  their  accomp]i(!es  were  then  impeached 
and  tried  for  frauds  upon  the  revenue."  Under  Richard  II 
tliri'f  were  a  number  of  impeachments,  (.f  whicli  the  most  im- 
]i(Mtant  was  that  of  Michael  de  la  Pole,  the  Chancellor."  ITnder 
IK'iiry  VI,  we  find  two  impeaclnnents,  that  of  the  Duke  of 
SiiiTolk  for  treason  in  1401;*  and  that  of  Loid  Staidey  for  a 
.similar  offense  in  145',).*  The  next  was  that  of  Sir  (iiles 
.Moiiipesson  in  1621  .^^  Since  then  there  have  been  fifty-four  im- 
|iiaihments  in   England,  which  ended  with  the  acquittal  of  Lord 


5  H7.  '  JI()nti'8(iiiiini,  Livio  XI,  ch. 
vi ;  t  l!l;i<-Ust(ini''s('onira<'iit;iri<'S,  2G1. 

-  'r.-uatiis  do  Miiribiib  (ionimiiis,  12  : 
'■  [.i.i't  apiiil  consiliuin  tt<'ciisai'o,  quo- 
i|iM'  el  iliscriiuon  ('apilis  iiitcndore." 

'■'  Kot.  Tarl.,  III.  p.  lOH. 

'  Claroiidon'sl'aHi',  (i  HiiwoU's  Stato 
Tii.ils,  2'Jl,  311,  318;  Halc'fi  VWae  of 
the  Cinwn,  vol.  ii,  ch.  xx,  j).  LIU. 

»  Stephens,  History  of  tlin  ("rimiiial 
Liiw,  vol.  i,  pp.  145  l.^n ;  Taylor's  Orl- 
(;in  :iMd  (riowUi  of  the  English  Coiisli- 
tulion,  pp.  441,  442. 

'  Ro(.  Pari.,  II,  pp.  323-:t2fi,  ^28, 
32;t;  Rynier,  p.  322;  Hallam's  Middle 
Agi's,  vol.  ill,  p.  56 ;  Stublis'  Coustltu- 


tional  History,  vol.  ii,  ch.  xvi ;  Tay- 
lors drlj^'lii  and  (irowth  of  the  Eng- 
lish Coiistitiitioii,  p.  441. 

•  1  Ktatc  Trials,  HI);  Kot.  Pari.,  Ill, 
pp.  2iri-21!).  For  oilier  Iinpon<-h- 
nionts  in  that  r(>i);n,  sec  Rot.  Pari.,  Ill, 
pp.  I(t-1'2,  1.53,  l.'iC, ;  Stcplu'ns,  History 
of  tlic  Criminal  Law,  vol.  1,  ]ip.  145- 
155;  Taylor's  Origin  and  (rrowth  of 
the  English  t'onstilution,  p.  442. 

«  1  Stale  Trials,  271. 

0  Hot.  Pari.,  V,  p.  3fin ;  Taylor"!  Ori- 
gin and  Growth  of  the  English  Consti- 
tution, p.  412. 

»  2  State  Trials,  1119. 


508 


IMPEACHMENTS. 


[chap.  XUI. 


Melville  in  180.5."  The  reports  of  the  trials  upon  them  ahound 
witli  matter  of  interest  to  the  lovers  of  literature  as  well  as  stu- 
dents of  jurisprudence  and  histor3\  They  describe  the  degradatiou 
of  Bacon.  They  contiiin  the  pathos  of  Strafford,  and  the  splendid 
imagery  of  Burke  and  Sheridan  wliich  adorned  the  trial  of  Warren 
Hastings. 

^  88.    Proceedings  in  the  Conveution  as  to  Impeiielmient. 

In  the  first  drafts  of  the  Federal  Constitution  which  were  sub- 
mitted to  the  Convention,  impeachments  were  to  be  made  by  the 
lower  liouse  of  Congress  and  tried  by  the  "  national  judiciary," 
or  "  Federal  judiciary."  '  Alexander  Hamilton  proposed  "  all  im- 
peachments to  be  tried  by  a  court  to  consist  of  the  chief-justice, 
or  judge  of  the  supreme  court  of  law  of  each  State,  provided 
such  judge  shall  hold  his  place  during  good  behavior,  and  have  a 
permanent  salary."  ^  lake  the  rest  of  liis  scheme  this  received 
little  favor.  And  in  the  report  of  the  Committee  on  Detail  tlie 
Supreme  Court  was  given  jurisdiction  over  "  the  trial  of  inipeacli- 
ments  of  officers  of  the  United  States."  ^  Gerry  then  moved 
that  that  committee  be  instructed  to  report  "  a  mode  of  trying 
the  supreme  judges  in  cases  of  impeachment."  *  Such  a  report 
was  made,  recommending  tiiat  they  be  tried  by  the  Senate.^ 
Gouverneur  Morris  was  the  first  to  point  out  the  danger  of  the 
trial  of  the  Pi-esident  by  the  Supreme  (^jurt."  The  subject  was 
again  referred,  with  others  which  had  not  been  finally  determined, 
to  a  connnittee  of  one  member  irom  each  State,"  which  re|)orted 
this  jiart  of  the  Constitution  in  substantially  the  form  that  it  re- 
tained.* 


"  Stephens,  History  of  tlie  Criminal 
Law,  vol.  i,  pp.  157-1.59. 

§  88.  I  Elliot's  Debates,  2d  ed.,  vol. 
V,  pp.  128-131,  188,  190,  192. 

•'  Ibid.,  p.  205. 

»  Ibid.,  p.  ;t80. 

*  Ibid.,  p.  447. 

«  Ibid.,  p.  462. 

«  Ibid.,  pp.  329,  480,  528. 

'  Ibid.,  ]).  503. 

'  "The  clause  roterrin;?  to  the  Sen- 
ate the  trial  of  Impeachments  against 


the  President,  for  treason  and  bribery 
was  tal<en  up. 

Col.  Mason.  Why  is  the  provision 
restrained  to  troai^on  and  liriljery 
only?  Treason,  as  defined  in  the 
Constllntion,  will  not  reach  iiiiiiiy 
gr(!at  and  dangerous  offences.  Has- 
tings Is  not  guilty  of  treason.  At- 
tempts to  suljvort  the  Const  itution 
may  not  lie  treason,  as  above  delliied. 
As  bills  of  attainder,  which  havosaved 
the  British  Constitution,  are  fcjiliid- 


ii  ,s,s.] 


ri!()CKKl)lN(i.S    IN    CONVKNTIOX. 


509 


'I'licre  woie  at  first  some  oljjectioiiM  to  any  i)i'ovision  for  tlic  iv.- 
iii(iv;il  of  tlie  President  hy  impeachment  on  the  jfroimd  that  this 


din.  it  i«  Iho  inoro  nopessnry  to  ox- 
trml  tho  powor  of  inipoiU'liiiieiitB. 
HcuikivimI  to  add,  after  'bribery,'  'or 
miiliKlininistratioii.'  Mr.  Gerry  soc- 
oiiili'il  liiin. 

Mr.  Madison.  So  vaguo  a  term 
will  lie  cciulvalent  to  a  tenure  during 
plrasure  of  tho  Senate. 

Mr.  flouverueur  Morris.  It  will 
iKil,  he  put  in  foree,  and  ran  do  no 
hiiriii.  An  election  of  every  four  years 
will  prevent  nuUadministratlon. 

Cdl.  Ma.son,  withdrew  '  ninladmin- 
isliiition.'and  sub.stituted  'other  high 
^Tillies  and  iniKdemoanors  against  the 
State." 

On  tho  (;ue8tion,  thus  altered,  — 

New  Hampshire,  JIassiichu.sottH, 
Cer.hectieut,  Maryland,  Virginia, 
Niirlli  Carolina,  South  Carolina  (in 
the  printed  Journal,  South  Carolina, 
no),  (Jeorgla,  ay,  8;  New  Jersey, 
I'cniisylvnnia,  Delaware,  no,  3. 

Mr.  Madison  olijeeted  to  a  trial  of 
the  President  by  the  Senate,  espoeially 
a8  he  was  to  be  impeached  by  the 
other  branch  of  the  legislature;  and 
for  imy  act  which  niiglit  bo  called  a 
niiwlemeanor.  Tho  President,  under 
tlii'sii  circumsti  nces,  was  nwide  im- 
piii|iiMly  (lepenilent.  He  would  pre- 
fir  the  Supremo  Court  for  tho  trial 
of  iinpea<'hments;  or,  rather,  a  tri- 
huniil  of  which  that  should  form  a 
part. 

-Mr.  Gouverneur  Morris  thought  no 
othir  tribunal  than  the  Senate  could 
ho  tnisted.  Tho  Supri'me  Court  wero 
too  few  in  number,  and  might  be 
warpod  or  corrupted.  Ho  was  against 
a  dependence  of  the  executive  on  the 
lPKisluturi>,  considering  the  legislative 
tyniiiiiy  tli(>  great  danger  to  bo  appi  v 
bcuil.Ml ;  but  there  could  bo  no  danger 
tlial  tho  Senate  would  say  untruly,  on 
their  oaths,  that  tho  President  was 


guilty  of  crimes  or  facts,  especially 
as  in  four  years  ho  can  bo  turned 
out. 

Mr.  Pinckney  disapproved  of  mak- 
ing the  Senate  the  court  of  iiiipeach- 
ments,  as  rendering  the  President  too 
dependent  on  tlio  legislature.  If  he 
opp<i8esa  favorite  law,  tliotwo  Houses 
will  combine  against  him,  and  under 
tho  Inlluonco  of  heat  and  faction, 
throw  hini  out  of  ortlco. 

Mr.  Williamson  thought  there  was 
more  dangi'r  of  too  much  lonity,  than 
of  too  much  rigor,  towards  tlie  Pres- 
ident, considering  tlio  number  of 
cases  in  which  tlio  Senate  was  asso- 
ciated with  the  President. 

Mr.  Shernuiu  regarded  thi^  Supreme 
Court  as  improper  to  try  tho  Presi- 
dent, because  the  judges  would  bo 
appointed  iiy  him. 

On  motion  by  Mr.  Madison,  to 
strike  out  tho  words,  '  liy  tlio  Senate,' 
after  tho  word  'conviction,'    - 

Pennsylvaiua,  Virginia,  ay,  2;  New 
Hanipslilre,  Massaehu.setts,  Connecti- 
cut, New  Jersey,  Delaware,  Maryland, 
North  Carolina,  So\ith  Carolina,  Geor- 
gia, no,  9. 

In  tho  amendment  of  Col.  Mason, 
just  agreed  to,  tlio  word  'state,'  after 
tho  words  '  misd<>meanors  '  against, 
was  struck  out ;  and  tlie  words 
'  United  States '  unanimously  inserted, 
in  order  to  remove  anil)iguity. 

On  the  question  to  agree  to  the 
clause,  as  amended  — 

New  Hampshire,  Massachusetts, 
Connecticut,  New  Jersey,  Delaware, 
Maryland,  Virginia,  North  Carolina, 
South  Carolina,  Georgia,  ay,  10;  Penn- 
sylvania, no,  1. 

On  motion,  tho  following:  — 

'Tlie  Vice  President,  and  other 
civil  odlcers  of  the  United  States, 
shall  be  removed  from  office  on  Im- 


610 


IMl'EACHMKNTS. 


[cilAi-.  x;ii. 


would  render  the  exeuutivu  too  woiik  and  destroy  liis  indciHiid- 
eiK'e  of  the  other  depiirtnients  of  the  goveruniunt."  These  ()l)je(!- 
tors  were,  howi'vcr,  ciisily  convinciMl  of  tlu'ir  error,  iind  of  iIk- 
danger  of  leaving  the  power  of  the  President  uncontrolled,  uml 
his  conduct  free  from  puiushnient  until  the  terniiniition  of  liis 
office.'"  Indeed,  .strong  ol)jeetioiis  were  urged  iigain.st  tlu;  iidop- 
tion  of  the  Constitution  because  there  W(?re  such  diflicultius  in 
the  way  of  his  conviction  on  an  impeachment.'' 

A  shoiL  discMission  took  jjlace  as  to  wiiat  shoidd  constitute  an 
imprachahle  ofTense.  The  first  definition  was  "mal-iiractice  or 
ne^dei't  of  duty."  ''^  The  report  of  the  Committee  on  Detail  said 
Inat  the  Pres  ident  might  he  removed  on  impeachment,  and  con- 
viction "of  ♦reason,  hrihcry,  or  corrnption." '^  When  the  report 
was  discussed  Colonel  Mason  first  moved  to  insert  after  "laihery," 
"or  mr.ladministration,"  then  substituted  "other  liigli  crimes  and 
niisde'.neanoi's  against  the  State;"  and  finally  "  United  States  "for 
"  State,"  in  which  form  his  amendment  was  adopteil.''*  A  similar 
provision  as  to  the  imjieachment  of  other  ollicers  was  addcd.'^ 
The  Committee  on  Style  droppe<l  the  words  '  against  the  United 
States."     Their  report  in  this  respect  passed  without  criticism. 


pnachmont  nnil  conviction,  as  aforo- 
said,'  — 

WI18  lulded  to  tlio  clause  on  the  sub- 
ject of  iinpeaclinicnts."  (Elliot's  De- 
bates, vol.  V,  pp.  ,">2H.  529. ) 

'  Gonvcrncur  JIoriiK:  "The  exec- 
utive is  also  to  be  Inipeaclwible.  Tliia 
is  a  danKeious  part  of  tlio  plan.  It 
will  lioUl  liini  in  sncli  dependence, 
that  he  will  bo  no  check  upon  the 
lenisialuro,  will  not  be  a  linn  (jnard- 
lan  of  the  people  and  of  the  public 
Interest.  lie  will  bo  the  tool  of  a  fac- 
tion, of  sonio  leadinf!  demagogue  in 
tlie  Icfjislature.  These,  then,  are  the 
faults  of  the  e.xecutive  establishment 
as  now  projiosed.  Can  no  better 
eslalilishnient  be  devised?  If  lie  is  to 
bo  till'  niiardian  of  the  |)eople,  let  him 
be  appointeil  by  the  people.  It  he  is 
to  be  a  cheek  on  tli(>  legislature,  let 
liiui  not  be  impeachable,"   (Elliot's  Be- 


h&tea,  2d  ed.,  vol.  v,  p.  .3.15.)  "Mr. 
Pinckney  did  not  see  the  neces-sity  of 
impi^acliments.  Ho  was  sure  thpy 
oughtnot  to  issue  from  thelefjislature, 
who  would  in  that  case  hold  thorn  n.< 
a  rod  over  the  executiv<',  and  by  tlmt 
means  elTectually  destroy  his  iinli-- 
poudencc.  His  rovisionary  power,  in 
particular,  would  be  rendered  alln- 
ftether  insipniflcjint."  (  Elliot's  I)i'- 
liates,  '2(1  ed.,  vol.  v,  p.  ;)U.)  Riifiis 
King  spoke  to  the  same  effect  (ibid., 
pp.  341-342). 

i»  Ibid.,  340-343,  361,  3n2,  36C. 

"  See  Luther  Martin's  Letlpriil'ifl., 
vol.  1,  pp.  371),  380). 

!■=  Elliot's  Debates,  2d  ed.,  vol.  v, 
p.  149. 

"  Ibid.,  p.  380. 

"  Ibid.,  p.  .'52S,  quoted  supra,  note  8. 

16  Ibid.,  p.  529. 


it  8M.] 


HISTOKY. 


511 


A  motion  wiw  mnde  to  amend  it  by  adtlinp,  "that  peraonH  im- 
|ii;i(  111  il  1k!  suspended  from  their  oflices  until  they  he  tried  and 
iiii|nitted."  This  was  wisely  voted  (h)wn."'  The  (Hsorderlv  pro- 
ct'i'diiigs  under  similar  constitutional  provisions  in  the  Southern 
States,  in  one  of  which  the  assembly  began  by  impri...  ■  nng  tlie 
(governor  in  his  office,  have  proved  their  mis(!hievou8  character.'^ 

'I'lie  rest  of  this  part  of  the  Constitution  was  adopted  with 
littlr  or  no  discussion,'*  and  seems  to  have  been  copied  from  the 
Niw  York  Constitution  of  1777.'" 

I'cMirs  Frame  of  Government  of  Pennsylvania  in  1683  pro- 
viiicil  for  impeachments  by  the  assembly  triable  before  the  coun- 
uil.-"  The  charters  of  the  other  colonies  seem  to  have  been  silent 
uiiiin  the  subject ;  but  the  colonial  asscmljlics,  in  imitation  of  the 
IJii^lish  j)raetice,  claimed,  and  in  Massachusetts,  North  and  South 
Carcilina  exercised,  the  power  to  impeach  their  judges  and  other 
olliccrs  for  trial  l)efore  their  respective  councils.'-"  Chief  Justice 
Tnit,  in  1717,  was  found  guilty  by  the  Council  of  South  Carolina 
oil  an  impeachment  by  the  House  of  Delegates  for  "having  en- 
trnisscil  the  judicial  power,  by  acting  as  judge  of  the  King's 
iHiicli,  the  common  pleas,  and  the  a<lmiralt3-."  '^ 

Most  of  the  State  constitutions  adopted  before  the  Federal 
Convention  contained  provisions  for  impeachment.^  The  Articles 
of  Confederation  were  silent  on  the  subject.     In  Pennsylvania, 


'"Ihid.,  i>[i.  541,  r.42.  ■■Mr.  Miid- 
Isoii.  The  Pri'Hidcnt  is  made  too  de- 
[ifiiili'iit  alreiidy  on  thi-  h^nislatiiro  l)y 
till'  jiowur  of  Olio  braui'li  to  try  lilm 
ill  coiiispiiuonco  of  an  iiniicaihnii'nl  by 
llio  otlior.  This  iraincdialo  Biispon- 
sion  will  put  him  in  the  power  of  one 
br.inih only.  Tlicy can atany moment, 
iu  1)1  iliir  to  make  way  for  tho  functions 
ot  uiiolhi'r  who  will  bo  nioro  favorable 
III  tlioir  vlows,  voto  a  toniporary  ro- 
iiioviil  of  tho  existing  magistrate." 

''  Si'o  tlie  History  of  Impi'arhmonts 
111  Aikansas  and  Florida  in  the  Ap- 
pciiiiix. 

'•  Klliot's  Debates,  2(1  ed.,  vol.  v, 
pp.  i;)l,  3S1,  4H0,  507,  B2S,  529,  559,  .502. 

'•'  N.  Y.  Constitution  of  1777,  Art. 
XXXIII  ;     Professor     Theodore    W. 


Dwight  in  6  American  Law  Register, 
N.  8.,  277. 

-'"  Pc  lore's  Cliarlers  and  Constitu- 
tions, j.p.  15'21,  1.521!,  IS'iS,  1,52!». 

'■"  John  Adaiiis'  Works,  vol.  v,  p. 
230;  Chiilniers,  Inlroduction  to  tho 
Historj-  of  tho  Revolt  of  the  Colo- 
nies, Book  VII,  ch.  xi;  Book  VIII, 
ch.  xi.  See  tho  Appendix  to  this  vol- 
ume for  an  account  ot  these  proceed- 
ings. 

•i'-  Ibid.,  Book  VIII,  ch.  xi.  See  the 
Appendix  to  this  volume. 

'-•'  See  tho  Jlassuchusetts  Constitu- 
tion of  1780,  Part  II,  Ch.  I,  Sect.  2, 
Art.  VIII ;  New  York  Constitution  of 
1777,  Alt  XXXIII;  South  Caroliua 
ConstltutloQ  of  1778,  Art.  XXIII. 


512 


IMPEACHMKSTS. 


[CHAI'.  .\!It. 


under  the  Confederation  in  1780,  Judge  Ilopkinson  of  the  State 
Court  of  A(hniriilty  was  iinpeacilied  l)y  the  aHseinhly,  tried  mid 
ac([nitte(l  hy  tlie  eouneil.  Janu^s  Wilson,  a  prominent  nieinlK  r  of 
tlie  l'\'deral  Convention,  was  one  of  iiis  attorneys.''" 

Montesquieu,  wiiose  opinioni  Iiad  great  weight  with  the  fruiiicis 
of  tiie  Constitution,  i)niise(l  iiiglily  tiie  Knglisli  system  of  imiu'iuli- 
meiil.'-*''  Ahieiiiavclli  aseriiied  tlie  fall  of  the  republic;  of  Klorcnce 
to  tlio  laek  of  a  law  for  the  inipeaehment  of  eitizens  who  platted 
against  it.^'     'J'ucker  .sai<i :  — 

"  If  the  want  of  a  proper  tribinisd  for  tlie  trial  of  itnpeaelinients  can 
endaiiifur  the  liberties  of  tlie  I'nited  States,  some  future  M;  ''ivelh 
may  ])erhapit  tniee  their  destruction  to  the  same  source."" 

The  nieml)era  of  the  Federal  Convention  were  fan...  ,uth 
the  ])ractiee  in  England  and  the  colonies  as  well  as  with  the  opin- 
ion of  Maeiiiavelli,  and  they  followed  the  practice  of  their  ances- 
tors when  tlusy  inserted  these  provisions  in  the  Constitution. 

^  8]>.    Kcasoiis  for  the  Trial  of  Iiii|M^aeliineiitM  by  the  Hoiiafe. 

'J'lie  selection  of  the  Senate  as  the  tribunal  for  the  trial  of  ira- 
I)eacbmcnts  has  been  the  target  of  severe  criticism  both  before' 
and  since  the  adoption  of  the  Constitution.^  The  defense  of  the 
method  adopted  may  be  best  stated  in  the  language  of  Hamilton, 
Story  and  Kawlc. 

"  A  well-constituted  court  for  the  trial  of  impeachments  is  an  ol  'ect 
not  more  to  be  desired  tiian  dilllcult  to  be  ol)tained  in  a  iroverniiieut 
wiiolly  elective.  The  subjects  of  its  jurisdiction  are  those  offences 
which  proceed  from  the  misconduct  of  public  men,  or,  in  other  words, 
from  the  abuse  or  violation  of  some  public  trust.  They  are  of  a  nature 
which  may  witii  peculiar  propriety  be  denominated  I'oi.niCAi,,  as  they 
relate  chiefly  to  injuries  done  immediately  to  the  society  itself.  Tlie 
prosecution  of  them,  for  this  reason,  will  seldom  fail  to  asjitate  the 
passions  of  the  whole  community,  and  to  divide  it  into  parties  inoie 


=*  Seo  Appendix. 

'■"'  Montesquieu,  De  I'Esprlt  lies 
Lois,  livro  xl,  ell.  vi. 

20  History  of  Florenee. 

2'  Tucker's  Blaekstone,  vol.  1,  Ap- 
pendix, 348. 


§  89.  >  Seo  Lutlicr  Jliirtin's  letter, 
Elliot's  Debates,  2il  eil.,  vol.  i,  pp. 
379-380. 

2  8oe  Tucker,  Blaekstone,  vol.  1, 
Appendix. 


^H'X] 


RKASONH    FOIt    TIIIAI,    IX   TIIK    SKNATK. 


r)13 


or  Irs.s  frii'iully  «t  inimical  to  tiio  acciisi'tl.  In  iiiiuiy  cuhcs  it  will  coh- 
iHct  ilrti'lf  witli  the  iiri'-pxisfiiiii  fiiPtions,  iiiid  will  piilist  nil  tiicir 
(iiiiindsitics,  piiitialitii's,  inlliu'iu'i",  iiiiil  iiitiTCHt  <iii  one  side  or  on  tiio 
otiicr;  1111(1  in  such  cnsos  thi'W  will  nhvavH  be  tin;  fjreate.sl  dandier  tliat 
tlic  decision  will  III)  ri'i^idiiK-d  nioiu  by  tiie  cotiiiiarativo  strcn<;lli  of  par- 
tii's,  tiian  by  the  real  demonstrations  of  innoeeiiee  or  };uilt. 

••I'lie  delicacy  and  iiiai;nitii(le  of  a  trust  which  ho  deeply  concerns 
till'  pcililical  reputation  and  existence  of  every  man  enf;a<;ed  in  the  ad- 
niiiii-lration  of  pid)lio  affairs,  speak  for  themselves.  The  dilllcidty 
(if  phiciiiu'  it  rijilitly,  in  a  froverninent  restinu;  entirely  on  I'  basis  of 
IHiiiidical  elections,  will  as  readily  be  perceived,  when  it  is  cousidercd 
lliai  the  most  conspicuous  characters  in  it  will,  from  that  circunistance, 
111'  tiio  often  the  leaders  or  the  tools  of  tlu;  most  ciiiiniiiij  or  the  Miost 
iiiiniciiiiis  faction,  and  on  this  account,  can  hardly  be  expected  to  pos- 
sess the  requisite  neutrality  towards  those  whose  conduct  may  be  tin" 
siiliject  of  scrutiny. 

"  The  convention,  it  appears,  thought  the  Senate  the  most  (it  de|iosi- 
tdiy  (if  tills  important  trust.  Those  who  can  best  discern  the  intrinsic 
(lillleiiliy  of  the  thiufi.  will  be  least  hasty  in  condeininufj  that  opinion, 
iuiil  will  be  the  most  inclined  to  allow  due  wei<;ht  to  the  arguments  which 
may  be  supposed  to  have  produced  it. 

•' V>lial,  it  may  be  asked,  is  the  true  spirit  of  the  institution  itself? 
Is  it  iKil  desiiined  as  a  method  of  National  Inqukst  into  the  conduct 
of  |iulilie  men?  If  this  be  the  design  of  it,  who  can  so  jiroperly  be  Ihe 
iiKluisilois  for  the  nation  as  the  representatives  of  the  nation  them 
selves?  It  is  not  disputed  that  the  power  of  originating  the  inquiry, 
(ir.  ill  other  words,  of  preferring  the  impeachment,  ought  to  be 
liiilueil  ill  the  bands  of  one  branch  of  the  legislative  body.  Mill  not 
the  reasons  which  indicate  the  propriety  of  this  arrangement  strongly 
pli;i(l  for  an  admission  of  the  other  branch  of  that  body  to  a  share  of 
llie  iiKpiiiy?  The  model  from  which  the  idea  of  this  institution  has 
been  borrowed,  pointed  out  that  course  to  the  eonventiuii.  In  (ireat 
Uritain  it  U  the  province  of  the  House  of  Commons  to  piel'er  the  iin- 
peaoliiiient,  and  the  House  of  Lords  to  decide  upon  it.  Several  of  the 
State  constitutions  have  followed  the  examide.  As  well  the  latter,  as 
the  former,  seem  to  have  regarded  the  practice  of  impeacliments  as  a 
hridle  in  the  hands  of  the  legislative  body  upon  the  executive  servants 
of  the  government.  Is  not  this  the  true  light  in  which  it  ought  to  be 
regarded  ? 

"  Whore  else  than  in  the  Senate  could  have  been  founded  a  tribuniil 
sufficiently  dignified,   or  sulllciently  independent?     What   other  body 


r,u 


IMI-KACIIMKNTS. 


[CH 


XIU. 


woiilil  l)c  likely  to  foel  cotijiilcnce  cnninjh  in  its  mm  nitiidtimi,  to  prcsc  rvo, 
iiiiiiwcd  I'.iicl  miiiilliieneeil,  the  iiccosaury  iinpaitisility  lu'twcon  an  /»'//- 
ridiiiil  acouscil,  and  tliu  ri'iiri't-cntdhrcs  of  tin'  jii'ii/ilc,  liis  iiccnsi'rs.' 

"  ('()\il(l  the  Supreme  Court  hiivc  been  lehed  upon  as  answeriiiir  tins 
desciiption?  It  is  nmeii  to  be  doubted,  wiiether  the  nienilieis  of  tiiiit 
tribunal  would  at  all  times  be  eudowed  with  so  eminent  a  portinn  of 
fortitude,  as  would  be  called  for  in  the  execution  of  so  dillicull  a  tiisk; 
and  it  is  still  more  to  be  doubted,  whether  they  would  jjosscss  llie 
degree  of  credit  and  authority,  which  might,  on  certain  occasions,  he 
iiidis])ensable  towards  reconciliii!!  the  people  to  a  decision  that  slimilil 
happen  to  clash  with  an  accusation  brousiht  by  their  immediate  rcprc- 
seutatives.  A  deficiency  in  the  first,  would  be  fatal  to  the  aecuseil ;  in 
the  last,  dangerous  to  the  public  traiKpiillity.  The  hazard,  in  Imili 
these  respects,  could  only  be  avoiiU'(l,  if  at  all,  by  rendering  ilml 
tribunal  more  numerous  than  would  consist  witli  a  reasonable  iutcnliim 
to  economy.  The  necessity  of  a  numerous  court  for  the  trial  of  iiii- 
pcachments,  is  equally  dictated  l)y  the  nature  of  the  proceeding.  This 
can  never  be  tied  down  by  such  strict  'ules.  either  in  the  delineiitioii  uf 
the  offence  by  the  prosecutors,  or  in  tlie  constriietion  of  it  hy  tin' 
judges,  as  in  conmion  cases  serv  to  limit  the  discretion  of  courts  in 
favor  of  personal  security.  Tiiere  will  be  no  jury  to  stand  between  lii' 
judges  who  are  to  ()rc>noiince  tiie  sentence  of  the  law,  and  the  ]iarly«liii 
is  to  receive  or  sulTer  it.  'i'lie  awful  discretion  which  a  couit  of  i.ii- 
l)eacimients  must  necessarily  have,  to  d'-om  to  honor  or  to  infamy  llif 
most  coniidential  and  the  mostdistingi  slied  characters  of  the  eoinnm- 
uity,  forbiils  the  coimnitment  of  tlie  trust  to  a  small  number  of  persons. 

"These  considerations  seem  alone  sullicieiit  to  authorize  a  eonilii- 
sion,  that  the  Siii)ri'ine  Court  would  liav(!  been  an  im|U(>per  siilistiluti' 
for  the  Senate,  aa  a  court  of  iin])eachments.  There  remains  a  furllicr 
consideration,  which  will  not  a  little  stiengthen  this  conclusion.  It  is 
this ;  The  punishment  which  may  be  the  consequence  of  convictinn 
U))on  impeachment,  is  not  to  terminate  the  chastisement  of  the  olTemliT. 
After  having  been  sentenced  to  a  perpetual  ostracism  from  the  eslci'ni 
and  confidence,  and  Iionors  and  emoluments  of  his  country,  he  will  siill 
be  liable  to  prosecution  an<l  punishment  in  the  ordinary  course  of  l:nv. 
AVoidd  it  be  proper  that  the  persons  who  had  <lisposed  of  his  f.'iiiie,  Mini 
his  most  valuable  rights  as  a  citizen,  in  one  trial,  should,  in  aimiln'r 
trial,  for  the  same  olfence,  be  also  tlu^  dis|)osers  of  his  life  and  liis 
fortnn<'?  Would  there  not  be  the  gi-eatest  reason  to  appi.'hend,  lliiit 
error.  In  the  first  sentence,  would  be  the  parent  of  error  in  the  sii'dinl 
Hcntcncei'     That  the  strong  bias  of  one  decision  would  be  apt  to  over- 


J;  S9.]  THE    KlilHOIiALIST.  ol") 

mil'  tlio  iiillui'iiec  of  any  new  li<rht.s  which  might  be  brouglit  to  vary  tlie 

(■ plcxion  of  another  decision?     Those  wiio  know  anythin<;  of  hunuin 

liiiurc,  will  not  hesitate  to  answer  these  questions  in  the  allirniative ; 
:niil  will  lie  at  no  loss  to  perceive,  tiiat  l>y  making  tlie  same  persons 
jiiiiges  in  both  cases,  those  who  mi^ziit  hap|)en  to  be  the  objects  of 
indscciition  would,  in  a  great  measure,  be  deprived  of  tlie  double  secu- 
riiy  intended  them  by  a  double  trial.  The  loss  of  life  and  estate 
would  often  be  virtually  included  in  a  sentence  which,  in  its  terms,  iin- 
]MiritMl  nothing  more  than  dismission  from  a  iircscut,  and  disqualilica- 
tion  for  a  future,  ollice.  It  may  be  said,  that  the  iulerveution  of  a 
juiy,  in  the  second  instance,  would  oliviate  the  danger.  l!ut  juries  are 
fir(|iieiitly  inlUicnced  by  tin;  opinions  of  judges.  They  are  sometimes 
iiiiliiecd  to  find  siiecial  verdicts,  whicli  refer  tlie  niai.i  (luestion  to  the 
li,  isioM  of  tlie  court.  AVho  would  be  willing  to  stake  his  life  and  liis 
i-iMte  upon  the  verdict  of  a  jury  acting  under  the  auspices  of  judges 

1  had  lucdetermined  his  guilt  ? 

•  Would  it  have  been  an  iinprovi'iuent  of  the  plan,  to  iiave  uiiiled 
Ihr  Supreme  Court  with  the  St  nate,  in  the  fonnatioii  of  the  couit  of 
i:ii|icaeliinents?  This  union  would  certainly  have  been  attended  with 
sevi>ial  advantages;  but  would  they  not  have  been  overbalanced  by  the 
sinnal  disadvantage,  already  stated,  arising  from  the  agency  of  the 
same  judges  in  the  doid)le  prosecution  to  which  the  olTcnder  wouhi  li(> 
lialile?  To  a  certain  extent,  the  benefits  of  that  union  will  be  olit  uned 
fniiii  making  the  chief  justice  of  the  Supreme  Court  the  jiresideiit  of  the 
point  of  iiupeachinents,  as  is  pniposed  to  be  done  in  the  ]ilaii  of  the 
eciiiveiition  ;  while  the  inconveniences  of  an  entire  incorporation  of  the 
rnniier  into  the  latter  will  be  substantially  avoided.  This  was  peihaiis 
the  prudent  mean.  I  forbear  to  remark  upon  the  additional  ])retext 
fill  elaiiior  against  the  judiciary,  which  so  considerable  an  ;'iig;neiitalion 
iif  ii!<  authority  would  have  atT'orded. 

"Would  it  have  been  desirable  to  have  composed  th<  court  for  the 
tri;il  of  impeachinents,  of  pers(nis  wholly  distinct  fiiim  the  other  de- 
partinenls  of  the  government?  There  are  weighty  arguiiieiits,  as  well 
:i<.'niiist,  as  in  favor  of.  such  a  plan.  To  some  minds  it  will  not  appear 
;i  trivial  objection,  that  it  could  tend  to  increase  the  coiniilexity  of  the 
I'lililieal  machine,  and  to  add  a  new  spring  1o  the  government,  the 
iitilily  of  which  would  at  best  be  (piestionable.  Itiit  an  objection  which 
will  iKit  be  thought  by  anj'  unworthy  of  attention  is  this  ;  a  court  for  iin'd 
iiliiin  such  a  plan,  woidil  cither  be  attended  with  a  heavy  expense,  or 
iiiiuht  ill  practice  be  subject  to  a  variety  of  casualties  and  inconviMiieiices. 
It  must  either  consist  of  perinaneut  ollicers,  stationary  at  the  seat  of 


:;1(! 


IMl'KACII.MKXTS. 


[('MAI'.  .\!ir. 


Liovi'i-iinient,  iind  of  course  entitli-d  to  fiNi'd  ami  rpirular  stipoiul.s,  or  of 
CLTtaiu  ollirers  of  tlio  State  liovci'iiinentsi  to  be  calU'il  mioii  wlieiu-wr  ::n 
iinpeiicliiiienl  was  actually  depiMidinu'.  It  will  not  lie  easy  to  imaiiinc 
any  tliird  modi;  UMtcrially  dilTereut,  wliieii  coidd  rationally  he  ])ro|ioseil. 
As  the  eoiirt,  I'oi'  reasons  already  iiiveu,  ou^iit  to  lie  luiinerous,  the  lirst 
sehenie  will  l)e  rei)rol>ated  by  every  man  who  can  ooinpare  the  extent 
of  the  public  wants  with  the  means  of  sui)[)lyin<;  them.  'I'he  seeoiiil 
will  be  espoused  with  caution  l)y  those  who  will  seriously  consider  the 
<lilllcnlty  of  coUeetin^  men  disperseil  over  the  wh<)le  I'nion;  the  injury 
to  the  innocent,  from  the  procrastinated  determination  of  the  charues 
which  niifiht  be  bro'ijjht  against  them;  the  advantai,'e  to  the  irnihy, 
from  the  opportnniti.'S  which  <lelay  would  afford  to  intrigue  and  corrup- 
tion ;  and  in  some  ct  ses  the  detriment  to  the  State,  from  the  [jroloiigiil 
inaction  of  men  whos<?  firm  and  faithful  execution  of  their  duty  niiiilit 
have  exposed  them  to  the  persecution  of  an  intemperate  or  desi^^iiiiis; 
majority  iu  the  House  of  Hepresentatives.  Thoii^li  this  latter  supposi- 
tion may  seem  harsh,  and  might  not  be  likely  often  to  bo  verified,  yet 
it  onsiht  not  to  be  forjijotten  that  the  demon  of  faction  will,  ;d  certain 
seasons,  extend  liis  scejttre  over  all  numcroiis  bodies  of  n>en."' 

"  A  review  of  the  princiiial  olijections  that  have  appeared  afjainst  tlio 
l)roposed  court  for  the  trial  of  impeachments,  will  not  improbalily 
eradicate  the  rcTnains  of  any  unfavorable  impressions  which  may  still 
ex'st  in  resrard  to  this  matter. 

" The ^'/'.si  of  these  objections  is,  that  the  provision  in  the  (pu'stion 
confounds  legislative  and  judiciary  authorities  in  the  same  body,  in 
violation  of  that  inii)ortaiit  and  well-(\slablished  maxim  which  reipiircs  ;i 
separation  between  the  different  departments  of  power.  The  true 
meaning  of  this  maxim  has  been  discussed  and  ascertained  in  another 
l)lace,  and  has  been  shown  to  be  entirely  compatible  with  a  |)arfi;ii 
intermixture  of  those  de[)artments  for  special  pnrposei  preserving 
thi'm,  in  the  main,  distinct  and  unconnected.  'I'his  partial  inter- 
mixture is  even,  in  some  cases,  not  only  (irrtper  but  necessary  to  llie 
nnitual  defence  of  the  several  members  of  the  government  against  each 
other.  An  absolute  or  (pialilied  negative  in  the  executive  upon  the  acts 
of  the  legislative  body,  is  admitted,  by  the  ablest  adepts  in  politiciil 
science,  to  be  an  indispensable  barrier  against  the  encroachments  of  the 
latter  upon  the  former.  And  it  may,  perhaps,  with  no  less  reason  bo 
contended,  that  the  powers  relating  to  impeachments  are,  as  before  in- 
timated, an  essentifll  check  in  the  liands  of  that  body  upon  the  en- 


'  The  FcdcriihHi,  No.  Ixv. 


§  «•'•] 


Till-:    FEDEllAI.IST. 


r.i7 


HAT.  x!ir. 


cn>:iclimuiits  of  the  exoc;;tive.  The  division  of  tiiem  betwcon  tlio  two 
bi;i'.]('l)os  of  Ihe  li'j^islature,  assiL'iiiiiii;  to  one  the  rijrlit  of  accusing,  to 
the  otliiM',  tiie  riijiit  of  juili;inir,  avoids  tlic  ineonvciiicnoe  of  making  the 
sanii'  persons  both  accusers  and  judges  ;  and  ginuds  against  tlie  danger  of 
persecution,  from  the  prevaleucy  of  a  factious  spirit  in  either  of  those 
l)ranches.  As  tlie  concurrence  of  two-tliirds  of  tlie  Senate  will  he  re- 
(jiiiMte  to  a  condemnation,  the  security  to  innocence,  from  tliis  addi- 
tional circuinstauce,  will  he  as  complete  as  itself  can  desire. 

"  It  is  curious  to  observe,  willi  what  vehemence  this  part  of  the  plan 
is  assailed,  on  the  principle  here  taken  notice  of,  by  nien  who  profess 
to  admire,  without  exception,  the  constitution  of  this  Slate;  while  that 
Constitution  makes  the  Senate,  together  with  the  chancellor  and  judges 
of  the  Supreme  Court,  not  oidy  a  court  of  inipeaehnients,  but  the 
highest  judicatory  in  the  State,  in  all  causes,  civil  and  criminal.  The 
jiroportion,  in  point  of  numbers,  of  the  chancellor  and  judges  to  the 
senators,  is  so  inconsiderable,  that  the  judiciary  authority  of  New  Yoik, 
in  (he  last  resort,  may,  with  truth,  lie  said  to  reside  in  its  .Senate.  If 
tlie  plan  of  the  convention  be,  in  this  respect,  chargeable  with  a 
dp])artiire  from  the  celelirated  maxim  which  lias  been  so  often  men- 
tioned, and  seems  to  be  so  little  understood,  ho"  ich  more  culpable 
must  be  the  constitution  of  Xew  Vorkr^ 

"  A  second  objection  to  the  Senate,  as  a  court  of  impeac-hments,  is, 
that  it  contributes  to  an  undue  accuiiiiilation  of  power  in  tli;it  l"Mly, 
teiKling  to  give  to  the  government  a  couatenance  too  aristocratic.  The 
Senate,  it  is  observed,  is  to  have  eoiieiirrent  authority  with  tlie  Kxecii- 
tive  in  the  formation  of  treaties  and  in  the  appointiiienl  to  olllecs  :  If, 
say  the  objectors,  to  these  i)rerogatives  is  added  that  of  deciding  in  all 
eases  of  impeachment,  it  will  give  a  decided  predominancy  to  senatorial 
iiilhience.  To  an  objection  so  little  precise  in  itself,  it  is  not  easy  to 
liiid  a  very  precise  answer.  Wliere  is  the  measure  or  criterion  to  whicli 
w.'  can  appeal,  for  deterniining  what  will  give  the  Si'uate  too  niucli,  loo 
little,  or  barely  the  proper  degree  of  inthience?  Will  it  not  he  more 
safe,  as  well  as  more  simple,  to  dismiss  such  vague  and  uncertain  calcula- 
tions, to  examine  each  jtower  by  itself,  and  to  decide,  on  general  prin- 
ciples, where  it  may  be  deposited  with  most  advantage  and  least  incon- 
venience? 

"  If  we  take  this  course,  it  will  lead   to  a  more  intelligible,  if  not  to 


*  "  In  tlinl  of  New  .Jersey,  also,  tlie  ami  Houlh  CaniUrin,  <iMe  liinTich  of  the 

lliiiil  .jiiiliciary  aiilliority  is  in  11  linuii'li  li-(.'lsl,itiiii'  is  the  court  for  tlio   trial 

"T   lli((   li'K'sliilure.      Ill   New   Ilaiiip-  of  Itnpeiichiiieiils.  —  I'tihliua." 
shire,   Mnssiiehusetts,    Pennsylvnuia, 


51 H 


IMI'KACll.MKNTS. 


[I'llAI'.  Mil. 


a  moip  certain  rrsult.  TIjo  disposition  of  the  power  of  inakinj^  troalit's, 
V. iiifh  lias  obtaiiu'd  in  the  plan  of  tiie  convention,  will,  llien,  if  I  mis- 
t!di(^  not,  ajipcar  to  lie  fully  justilied  by  tlie  considerations  stated  in  a 
fornur  niiiiilur,  and  by  others  wliicli  will  oecnr  nnder  the  next  head  of 
our  inquiries.  Tlie  expediency  of  tlic  conjunction  of  the  Senate  with  the 
Kxocutive,  in  the  power  of  appointing  to  olllce.s,  will,  J  trust,  lie  placed 
in  a  light  not  less  satisfactory,  in  the  dis<juisitions  under  the  saiiio  head. 
And  I  Hatter  myself  the  observations  in  my  last  paper  nnist  have  gone 
no  inconsideralile  way  towards  proving  that  it  was  not  eas}',  if  practic- 
able, to  find  a  more  tit  recepta<'le  for  the  power  of  determining  iin- 
peachnients,  than  that  which  has  been  chosen.  If  this  lie  truly  the 
case  the  hypothetical  dread  of  the  too  great  weight  of  the  Senate  ought 
to  be  discarded  from  our  reasonings. 

"  lUit  this  hypothesis,  such  as  it  is,  has  already  been  refuted  in  the 
reintirks  applied  to  the  duration  in  oltice  prescribed  for  the  bcmilors. 
It  was  liy  them  shown,  as  well  on  the  credit  of  historical  examples,  !\s 
from  the  reason  of  the  thing,  that  tlic  most  pnpnhir  branch  of  every 
govcrnnient,  partaking  of  the  republican  geuius,  by  being  generidly  the 
favorite  of  the  people,  will  be  as  generally  a  full  nuitch,  if  not  .'ui 
overmatch,  for  every  other  mcmlier  of  the  Ciovernnient. 

'•  Hut  independent  of  this  most  active  and  operative  ])rincipU>,  to 
secure  the  equilibrium  of  the  national  House  of  Keiiresentatives,  the 
plan  of  the  convention  ha.s  jirovided  in  its  favor  several  importiuit 
counterpoises  lo  tiie  additional  authorities  to  be  conferred  upon  the 
Senate.  The  exclusive  privilege  of  orignudiiig  money  bills  will  belong 
to  the  House  of  Representatives.  The  same  house  will  possess  tho  sole 
right  of  instituting  inqjeachments  :  is  not  this  a  conq)lete  counterbalance 
to  that  of  deternniiiiig  them?  The  same  house  will  be  the  nnqiire  in 
ail  elections  of  the  I'li'sident  which  do  not  unite  the  suffrages  of  a 
niaJDi  it}' of  the  whole  number  "f  electors;  a  case  which  it  cannot  he 
do'dited  will  sometimes,  if  not  fie(picnlly,  happen.  Tlic  constanl  pos- 
sibility of  the  thing  must  lie  a  fruitful  source  of  inlluence  to  that  body. 
'I'he  more  it  is  couteinphited,  the  more  inqxjrlant  will  appear  this 
ultimate  though  contingent  power,  of  deciding  the  competitions  of  the 
most  illustrious  citizens  of  the  I'nion,  for  the  first  ollice  in  it.  It 
would  not  perhaps  be  rash  to  predict,  that  as  a  mean  of  inlluence  it  will 
be  found  to  outweigh  all  the  peculiar  attributes  of  the  Senate. 

"A  tliint  objection  to  the  Sena  <•  as  a  court  of  impeachments,  in 
drawn  from  the  agency  they  are  to  have  in  the  appointments  to  oHiee. 
It  is  imagined  that  they  wciuld  be  tuo  indulgent  judges  of  the  conduct 
of  men,  in  whose  olllcial  creation  they  had  participated.     The  principle 


■"i  '^'•'•] 


TiiK  Fi;i)j:i:.\i.;sT. 


:>\i) 


v(  this  oliji't'tiou  would  I'oiiih'iiiii  :i  piaolicr,  \vlii<'li  is  to  he  sci'ii  in  nil 
tiic  Slate  govci'iiineuts,  il'  not  in  :ill  liu'  uovornnji'iits  willi  wlii  I.'  we  lu'c 
iin|uaiiit(Ml :  I  iiionii  tliMt  of  I'l'nilii'iiii;  llioso  who  liold  olliecs  (luiiii;!; 
lihiisiiro,  tli'iK'ndent  on  tiii'  i)lt':isiiri;  of  tliosi'  who  appoint  llu'ni.  Witli 
((|U;d  phiiisibiliiy  mifjlit  it  W.  alli'i;i'd  in  lliis  case,  tlial  Ilic  favoritism  of 
liii'  latter  would  always" '"'  an  asyhiin  for  the  niishehavior  <pf  the  former. 
lint  that  praelice,  in  contradiction  to  this  i)rinci|)le,  proceeds  upon  the 
|irisiimi)tion,  that  the  re.s[)onsibility  of  those  who  appoint,  for  the  lil- 
iir-s  and  competencj'  of  the  persons  on  whom  they  bestow  tiieir  choice, 
;iii(l  the  interest  they  will  have  in  the  resjjeetable  and  piospeious  ailmin- 
i^! ration  of  alTairs,  will  inspire  a  sulllcient  disposition  to  disndss  from 
!'  -h;ire  in  it  all  such  w  ho,  by  their  conduct,  shall  have  [jroved  themselvca 
iMn.orlliy  of  the  confidence  reposed  in  them.  'rhoii<;li  facts  may  not 
iilwiiys  correspond  with  this  presumption,  yet  if  it  be,  in  the  main,  just, 
it  must  destroy  the  suppositiou  that  the  Senate,  who  will  merely 
sMiictioii  the  choice  of  the  Executive,  should  feel  a  bias,  towanls  the 
(ilijeets  of  that  choice,  stronji  cnouifh  to  blind  them  to  the  evidences  of 
L'liili  so  cxtraordin.ary,  as  to  have  induced  the  rei)resentatives  of  the 
nation  to  become  its  accusers. 

"  If  any  further  arguments  were  necessary  to  evince  the  improbability 
iif  such  a  liias,  it  might  be  found  in  the  nature  of  the  agency  of  the 
Siiiale  in  the  business  of  api)oiiitments. 

••  It  will  be  the  ollice  of  the  President  to  nnminutc,  and,  with  the  ad- 
vice and  consent  of  the  Senate,  to  (iji/ioiiit.  There  will  of  course,  be  no 
exertion  of  choke  on  the  part  of  the  Senate.  They  may  defeat  one 
chiiice  of  the  Kxeciitive,  and  oblige  him  to  make  another;  but  they 
<:iimot  themselves  rliooac  —  they  can  only  ratify  or  reject  the  choice 
(if  the  President.  They  might  even  entertain  a  preference  to  some 
ntlu'r  person,  at  the  very  moment  Ihey  were  assenting  to  the  one  pro- 
iMsnl,  liecanse  there  might  be  no  positive  ground  of  opposition  to  him; 
aiiil  they  could  not  be  sure,  if  they  withheld  their  assent,  that  the  sub- 
si'iuiiit  nominal ioii  would  fall  upon  their  own  favorite,  or  upon  any 
ulhi'r  person  in  their  cstiniatiou  more  meritorious  than  the  one  rejected. 
Tims  it  could  hardly  happen,  that  the  majority  of  the  Senate  would 
foil  any  other  complacency  toward.-,  the  object  of  an  appnintmeiit  than 
siirli  as  the  appearances  of  merit  might  ins|)ire,  and  the  proofs  of  the 
«;uit  o.'  it  destroy. 

"■^  A  fiinrth  objection  to  the  Senate,  in  the  capacity  of  a  court  of  im- 
|>oaclnnent8,  is  derived  from  its  union  with  the  Ksecutive  in  tlie  power 
of  making  treaties.  This,  it  has  been  said,  would  constitute  the 
Senators  their  own  juilges,   in   every  case  of  a  corrupt  or  perlidious 


i20 


IMPEACHMKNTS. 


[chap.  XUI. 


execiUion  of  that  trust.  After  haviug  combined  with  the  Execiitivi-  in 
lii'trayiii^  tlio  intort'sts  of  the  nation  in  a  ruinous  treaty,  wiiat  prospect, 
it  is  asived.  would  there  be  of  their  being'  made  to  suffer  the  puuisiniiL'iit 
tiiey  would  deserve,  when  they  were  themselves  to  decide  upon  the 
accusation  brought  against  tiiein  for  the  treachery  of  which  they  have 
been  guilty? 

"Tliis  objection  has  been  circuhited  with  more  earuesluess  and  with 
greater  show  of  reason  than  any  other  which  has  appeared  against  this 
part  of  the  plan  ;  and  yet  I  am  deceived  if  it  does  not  rest  upon  an 
erroneous  foundation 

"The  security  essentially  intended  l)y  the  Constitution  against  cor- 
ruption and  treachery  in  the  formation  of  treaties,  is  to  be  souiiht  for 
in  the  numbers  and  characters  of  those  who  are  to  make  tlieni.  '1  he 
.lOiST  AdKNTY  of  the  Chief  Magistrate  of  the  Union,  and  of  the  twu- 
thirds  of  the  members  of  a  body  selected  by  the  collective  w  isiloin  of 
the  legislatures  of  the  several  .States,  is  designed  to  be  the  pledge  for 
the  fidelity  of  the  national  councils  in  this  particular.  The  convention 
might  with  propriety  have  meditated  the  punishment  of  the  Executive, 
for  a  deviation  from  the  instructions  of  the  Senate,  or  a  want  of  iiite;;- 
rity  in  the  conduct  of  the  negotiations  committed  tiy  him ;  they  niiirht 
also  have  had  in  view  the  punishment  of  a  few  leading  individuals  in 
the  Senate,  who  should  have  prostituted  their  influence  in  that  body  as 
tli^  mercenary  instruments  of  foreign  corru|)tiou  ;  liut  they  could  nut 
witi  more  or  with  eijual  propriety,  have  contemplated  the  impeachment 
and  punishment  of  two-thirds  of  the  Senate,  consenting  to  an  iMipni|iir 
trei  ty,  than  of  a  majority  of  that  or  of  the  other  branch  <d'  the  n:ilional 
legislature,  consenting  to  a  pernicious  or  unconstitutional  law,  —  a  prin- 
ciple which,  I  believe,  has  never  been  admitted  into  any  government. 
How,  in  fact,  could  a  majority  in  the  House  of  Hepresentatives  iinpeiieli 
themselves?  No  better,  it  is  evident,  than  two-thirds  of  the  Semite 
might  try  themselves.  And  yet  what  reason  is  there,  that  a  majority 
of  the  House  of  Hepresentatives,  sacrificing  the  interests  of  the  soeiely 
by  an  unjust  and  tyrannical  net  of  legislation,  should  escape  with  im- 
punity, more  than  two-thirds  of  the  Senate,  sa<'rificiug  the  same  inter- 
ests in  an  injurious  treaty  with  a  foreign  power?  The  truth  is,  that  in 
all  such  cases  it  is  essential  to  the  freedom  and  to  the  necessary  inde- 
pendence of  the  d(diberatioii3  of  t\u'  body,  that  the  mend)ers  of  it  should 
be  exempt  from  punishment  for  acts  done  in  a  coUectivi^  capacity;  iind 
the  security  to  the  society  must  depend  on  the  care  which  is  taken  to 
confide  the  trust  to  proper  hands,  to  nuike  it  their  interests  to  exeente 
it  with  fidelity,  and  to  make  it  as  dillicult  as  possible  for  them  to  com- 
bine in  any  interest  opposite  to  that  of  the  public  good. 


>'  '^'•'•] 


.lUDGK   STOUY. 


521 


'•So  fur  !i8  mij;lit  concern  the  misbehavior  of  the  Executive  in  per- 
vert iiij;  tiie  instructions  or  contravoiiiii<j;  tlie  views  of  tlie  Senate,  we 
need  not  be  appreliensive  of  the  want  of  a  disposition  in  tiuit  body  to 
|uiiiisli  the  abuse  of  tlieir  conlidonce,  or  to  vindicate  their  own  authority. 
W'f  may  tinis  far  count  upon  tlieir  pride,  if  not  upon  their  virtue.  And 
80  far  even  as  niiglit  concern  tlie  corrupiion  of  leadin<i;  nieinliers,  by 
whose  arts  and  inlhicnce  the  majority  may  have  been  inveigled  into 
nuiisiires  odious  to  the  community  if  the  proofs  of  that  corruption  should 
be  siilisfactory,  the  usual  proiieiisity  of  huiiian  nature  will  warrant  us 
ill  coiieludinji  tiiat  there  would  be  commonly  no  defect  of  inclination  in 
till'  liody  to  divert  the  public  resentment  from  themselves  by  a  ready 
sucrilice  of  the  authors  of  their  mismanagement  and  disgrace."  " 

"  111  regard  to  political  offences,  the  selection  of  the  senators  has 
SDiiic  positive  advantages.  In  the  liist  place  they  may  be  fairly  pre- 
siiiiiid  to  have  a  more  enlarged  knowledge  than  ])t'rsons  in  other  situa- 
tions, of  political  fumtions  and  their  dilliculties  and  embarrassments; 
of  the  nature  of  diplomatic  rights  and  duties ;  of  the  extent,  limits,  and 
viiiiily  of  executive  powers  and  operations ;  and  of  the  sources  of  in- 
vdluiilary  error  and  undesigned  excess,  as  coiitra<listiiigiiislied  from 
tliose  of  meilitated  and  violent  disregard  of  duty  and  right.  On  the 
one  liiiiid,  tliis  very  experience  and  knowledge  will  bring  thein  to 
the  trial  with  a  spirit  of  candor  and  intelligeuee,  and  an  ability  to  com- 
prelieiid  and  scrutinize  the  charges  against  the  ivciised;  and,  on  the 
otlur  hand,  their  connection  with,  and  dependence  on,  the  .States,  will 
iiiakt!  them  feel  a  just  regard  for  the  defence  of  the  rights  and  the  in- 
ti'iists  of  the  States  and  the  peojile.  Ami  this  may  lu'opeily  lead  to 
another  remark  ;  that  the  power  of  impeachment  is  |)eciiliarly  well  lilted 
to  he  left  to  th<!  final  decision  of  a  trilniiial  coinposeil  of  representatives 
of  all  the  States,  having  a  comniou  interest  to  iiKiiutain  the  rights  of 
;ill.  anil  yet  lieyond  the  reach  of  local  and  sectional  iirejudiees.  Surely, 
it  will  not  readily  be  admitted  by  the  zealous  defenders  of  State  rights 
ami  State  jealousies,  that  the  power  is  not  safe  in  the  hands  of  all  the 
Stales,  to  be  used  for  their  own  protection  and  honor.  "" 

"Tlial  there  is  a  great  force  in  this  reasoning  all  ])ei'sons  of  common 
candor  must  allow;  that  it  is  in  every  respect  satisfactory  and  un- 
iuiswenible  has  been  denied,  ami  may  be  fairly  (|uestioiicd.  That  part 
<if  it  which  is  addressed  to  the  trial  at  law  by  the  same  judges  might 
have  been  in  some  degree  obviated  by  conliding  the  jurisdiction  at  law 
over  the  olTence  (as  in  fact  it  is  now  conlided)  to  an  inferior  tribunal, 


'  The  PederallHt,  No.  Ixvi. 


•  Story  on  the  Gjnstitutiou,  §  750. 


IJirKACIIMKNTS. 


[t'llAI'.  Mil. 


mill  cxc'liiditij^  :ui_v  jiidjro  who  Hilt  iit  llio  impeachnieiit  from  sillii.i;  in 
tlic  c'oiii't,  of  liitil.  Slill,  lio\vi'V(M-,  it.  caiiiiot  lie  Ueuicd  that  even  in  such 
a  case  the  prior  jii(lj;iiu'iit  of  tiie  Sii|>ii'iiu'  Coiiit,  if  nil  apiieiil  to  it  v.in' 
not  iillowablo,  woiihi  liave  veiy  ^ruat  weijfht  upon  the  iiiiuds  of  iiiri'iiur 
jiidiit's.  J5iit  that  part  of  the  reasoning  which  is  addressed  to  tlu'  im- 
poilaiice  of  niiiiihers  in  giviii";  weijjiit  to  tiie  decision,  and  espeei;illy 
that  wiiich  is  adthvsscd  to  tlie  public  coiitidenee  and  respeet  which 
onjiht  to  follow  upon  a  decision,  is  entitled  to  very  great  wc^ight.  It  is 
iit,  liowcver,  to  give  the  answer  to  the  whole  reasoning  by  the  othir 
side  in  the  words  of  a  learned  coinineutator,  who  has  embodied  it  wilii 
no  small  share  of  ability  and  skill.  The  reasoning  '  seems,'  says  he, 
'to  have  forgotten  that  senators  may  be  discontinued  from  their  st'iii.i 
merely  from  the  etfect  of  popular  disapprobation,  but  that  the  ju(l;j:f.s 
of  the  Supreme  Court  cannot.  It  seems  also  to  have  forgotten  tlmt, 
whenever  the  President  of  the  United  States  is  impeached,  the  Coiisli- 
tution  expressly  requires  that  the  Chief  Justice  of  the  Supreme  Court 
shall  preside  at  the  trial.  Are  ail  the  coiilidence,  all  the  firmness,  iiiiil 
all  the  impartiality  of  that  court  supposed  to  be  concentred  in  the 
Chief  Justice,  and  to  reside  in  his  breast  only?  If  tiiat  court  could  not 
be  relied  on  for  the  trial  of  impeachmeiits,  much  less  would  it  seem 
worthy  of  reliance  for  the  determination  of  any  question  between  llie 
United  States  and  :  particular  State;  much  less  to  decide  upon  the  life 
and  death  of  a  person  whose  crimes  might  subject  liiiii  to  impeachnn-iit, 
but  whose  intluenco  might  avert  a  cimviction.  Vet  the  courts  of  tlic 
United  States  are  by  the  Constitution  regarded  as  the  proper  trilmiwils 
where  a  jiarty  convicted  upon  an  impeachment  may  receive  that  coiulisiii 
punishment  which  the  nature  of  his  crimes  may  require;  for  it  must  not 
be  forgotten  that  a  person  convicted  upon  an  impeachment  will  iievor- 
theless  be  liable  to  indictment,  trial,  judgment,  and  punishment  aoeord- 
iiig  to  law,  etc.  The  question,  then,  might  be  retorted  :  can  it  be  siip- 
jKJsed  that  the  Senate,  a  (lart  of  whom  must  have  been  either  jxnV/ii/is 
criiiiiiii-'i  with  the  person  impeached,  by  advising  the  measure  for  wliicli 
he  is  to  be  tried,  or  must  have  joined  the  opposition  to  that  measniv, 
when  proposed  and  debated  in  the  Senate,  would  be  a  more  iiidepemU'iit 
or  a  more  unprejudiced  tribuiial  than  a  court  composed  of  judges  hold- 
ing their  ofHces  during  good  behavior  and  who  could  neither  be  presuiiii'il 
to  have  participated  in  the  crime,  nor  to  have  ])rnjudged  the  eriminal?  " 
"This  reasoning  also  has  much  force  in  it;  lint  in  candor  also  it 
muBt  bo  admitted  to  be  not  wholly  unexceptionable.     That  part  which 


'Ibid.,  §7G0,  citing  Tucker's  Blackstoue,  vol.  i,  App.,  p.  237. 


T'''-] 


•UJIXiK    STOItV. 


y2ii 


i-  ii.idri'ssed  to  tlic  ciri'iim;'liiiK'('  of  tln^  Cliicf  .Iusli('i''s  pi'Cf.iiliiii.'  !it  llui 
tii^il  of  till!  I'rosiili'iit;  of  tin;  liiitcil  Stalfrt  wtis  (;i.s  wi:  •■.luill  liiTi'.'ifU'r 
>,■.)  not  foiiiuli'il  on  liny  Mil)liositioii  tliiit  the  Chief  .Inst  ice  wonlil  In'  sm|io- 
rini-  III  coufKlcncf  iind  lirnincssiuul  iini);irli;ilit_vto  llio  I'csidncof  llir  jmlut'S 
(ihouiih  ill  talents  and  imbiic  ivspcct  and  aiMiniicnicntri  iii"  niii;lit  fairly 
lie  piTsunied  their  superior),  bnl  on  the  necessity  of  exolndinii;  tin'  \'ic'e- 
rrc^iiUnit  from  tiie  chair  when  lu'  rniiiht  have  a  manifest  interest  whicii 
Wdiild  destroy  iiis  iniiiarliality.  Tlial  pari  wiiicli  is  aihlresse.d  to  tiie 
supposition  of  thu  Bouators  he'w^  /xirlirijies  criininis  ia  still  more  ex- 
ci  plional)le ;  for  it  is  not  only  ineorreet  to  alllrin  that  the  senators  iiri.tl 
lie  in  such  a  predicament,  but  in  all  probability  the  senators  would,  in 
!ilii!()st  nil  cases,  he  without  any  participation  in  tlie  offence.  Tlie 
(ilieiices  whicli  would  be  generally  prosecuted  by  impeaclunont  wouUl 
lie  those  only  of  a  liiLth  cliaracter,  and  belonging  to  persons  in  eminent 
stnlions, — such  as  a  head  of  department,  a  foreign  minister,  a  judu'e, 
!i  vice-president,  or  a  president.  Over  the  conduct  of  such  persons  the 
SciiMte  could  ordinarily  have  no  control;  and  a  corrupt  combination 
wiih  them  in  the  discharge  of  the  dniies  of  their  respective-  ollices  could 
scarcely  be  presumed.  Any  of  these  ollieers  might  be  bribed,  or 
CDinmit  gross  misdemeanors,  witliout  a  single  senator  having  the  least 
knowledge  or  participation  in  the  olTence.  And,  indeed,  very  few  of 
tile  senators  could  at  any  time  be  presumed  to  l)e  in  habits  of  intimate 
ji.'ivoiial  confidence  or  connection  with  many  of  thesi,'  ollieers.  And  so 
l':ir  as  public  responsibility  is  concerned  or  public  coiilidence  is  required, 
the  tenure  of  ollice  of  the  judges  would  have  no  strong  tendency  to 
si'ciM'e  the  former,  or  to  assuage  public  jealousies  so  as  peculiarly  to 
I'lUDurage  the  latter.  It  is  perhaps,  one  of  the  circumstances  most  im- 
1111! lant  in  the  discharge  of  judicial  duties,  that  they  rarely  carry  with 
tliiiii  any  strong  jxipular  favor  or  popular  influence.  'J'he  iulluence,  if 
M!iy,  is  of  a  dilVercnt  sort,  arising  from  dignity  of  life  and  conduct, 
iilisiinence  from  political  contests,  exclusive  devotion  to  the  advance- 
ment of  the  law,  and  a  linn  administration  of  justice;  circumstances 
winch  are  felt  more  by  the  profession  than  they  can  bo  expected  to  be 
pnised  by  the  public."' 

"There  are,  however,  rcasoiw  of  great  weight  besides  those  which 

liMve  been  already  alluded  to.  whicli  fully  justify  the  conclusion  Ihiit  the 

•>niueme  Court  is  not  the  most  appropriate  tribunal  to  be  invested  with 

authority  to  try  impeachments."" 

"  lu  the  lirst  place,  thu  nature  of  the  functions  to  be  performed. 


1  Story  on  the  Constilulion,  §  701.  »  Ibid.,  §  703. 


Alii 


IMrKACll.MKNTS. 


[(•IIAP.   Mil. 


'l\[f  ol'ffiiccfi  to  wliicli  the  powor  of  Miipi'iiclimcntfl  lin.s  been  ami  is 
oiiliiiiuily  :i|i|)lii'(l  us  n  riMiu'ily  iirc  of  a  jiolitical  oliarftctcr.  Not  liiit 
tlial  orinics  of  a  Htriotlj-  Ici^al  clmnu'liT  fall  within  the  Hcope  of  tlie 
power  (for  as  we  sliali  prt'Hcntly  nee,  tri'imon,  liribory,  and  otiicr  iii<;ii 
Clinics  and  niisdi'ineanors  arc  expressly  within  it);  Imt  that  it  has  a 
more  eiilarffcd  operation,  and  rcachcH  what  are  aptly  termed  political 
otTcnccs,  growinij  out  of  personal  misconduct  or  gross  neglect,  or  usur- 
pation, or  habitual  disregard  of  the  public  interests,  in  the  ilisciiaiirt' of 
the  duties  of  political  olllcc.  These  are  so  various  in  their  character, 
and  so  indefinable  in  their  actual  involutions,  that  it  is  almost  impossi- 
ble to  provide  syslemalically  for  them  by  positive  law.  They  must  he 
exaiiiiiU'd  upon  very  brt)ad  and  com|irelieii.sive  iirinciples  of  public 
])olicy  and  duty.  Thej-  must  be  judged  of  by  the  habits  and  rules  and 
principles  of  diplomacy,  of  departmental  operations  and  arrangeineiits, 
of  i)arliaiiu'iitnry  practice,  of  executive  customs  and  negotiations,  of 
foreign  as  well  as  doine.'-lic  political  movements;  and,  in  short,  by  a 
great  variety  of  eirciimstunces,  as  well  those  which  aggravate  as  those 
which  extenuate  or  justify  llie  otTeiisive  acts  which  do  not  ])i'operly  be- 
long to  the  judicial  character  in  the  ordinary  administration  of  ju>tict', 
and  are  far  removed  from  the  reach  of  municipal  jurisprudence.  Tluv 
arc  duties  wiiicli  are  easily  understood  by  statesmen,  and  are  rarely 
known  to  judges.  A  trilmiial  composed  of  the  former  would  tlierefori' 
be  far  more  competent  in  point  of  inSciligeiKa'  and  abililj'  tluin  tlie  lattiT 
for  tiie  (I'scliaige  of  the  funclions,  ail  other  circunislances  being  e(|ii:ii. 
And.  surely,  in  siicli  grave  alTairs,  the  competency  of  the  ti'uiuiial  to 
discharge  the  duties  in  the  best  manner  is  an  indispensable  qualilica- 
tion."  '" 

"  In  the  next  place,  it  is  obvious  that  the  strictness  of  the  forms  of 
proceeding  in  caM's  of  olTeiices  at  common  law  is  ill  adapted  to  im- 
peachments. The  very  habils  growing  out  of  judicial  emiiloyments. 
the  rigid  manner  in  which  the  discretion  of  judges  limited  and  fenced 
in  on  all  sid  ■«.  i;i  order  to  protect  persons  accused  of  criines  by  rules 
and  precedents,  and  the  adherence  to  ti'(dinical  |)iiiieiplcs,  which.  \wr- 
haps,  distinguishes  this  branch  of  the  law  more  llian  any  oilier,  are  all 
ill  adapted  to  the  ti'ial  of  political  otTences  in  the  broad  course  of  im- 
peachments. Anil  it  has  been  ol)serve:l,  with  'n-eat  ])roprie1y,  that  a 
tribunal  of  a  liberal  and  comprehensive  character,  conliiied  as  little  us 
possible  to  strict  forms,  enabled  to  continue  its  session  as  long  as  tlir 
nature  of  the  law  may  recpiire,  (lualilied  to  view  the  charge  in  all  its 
bearings  and  dependencies,  and  to  apjireciate  on  sound  principles  of 
J"  Story  on  the  Constitulioii,  §  7G4. 


.Il'IHlK   STOKY. 


|iiiMi<'  policy  tlie  ilefcnce  of  tlic  iicciiM'd,  spciiis  indis|)ciisiil)lc  \i>  tlio 
valine  of  llu!  trial.  Tiio  liistorv  of  iiiipciicliiin'iitH,  liotli  in  ImihIiiihI  mikI 
AniciicM,  jiisliru'H  the  iciiKuk.  Tlu're  is  Utile  tcciiMical  in  the  nioilt'  of 
pnici'i'iliiijr ;  tlie  cliiir|if8  are  Hiitllciciitly  clear  and  yet  in  a  general  form  ; 
tliere  arc  few  exceptions  wiiieii  arise  in  the  apiilication  of  tlie  (<viili'nco 
wliicli  lirow  out  of  mere  technical  rules  ami  rpiilililes.  Anil  it  Iims  re- 
peatedly been  seen  tluvt  tiie  functions  have  been  better  understood,  antl 
aiore  iil)erally  and  justly  expounded,  by  statesmen  than  by  mere 
lawyers.  An  illustrious  instance  of  this  sort  is  upon  record  in  the  case 
of  llie  trial  of  Warren  Ilastinirs,  where  the  (piestions  whether  an  im- 
peailimeMt  w;\s  abated  by  a  dissolution  of  I'arliament  was  decided  in 
ilic  negative  l)y  the  House  of  Lords,  ns  well  as  the  House  of  ( 'om- 
inous, afiaiust  what  seemed  to  lie  the  weiiiht  of  professional  opinion."" 
••  In  the  next  place,  the  very  functions  involving  political  interests 
and  connections  are  precisely  those  which  it  seems  most  inii)ortant  to 
exclude  from  the  coi;nizance  and  participation  of  the  judjies  of  the 
Supreme  Court.  Much  of  the  reverence  and  respect  lielon^iinn  to  the 
judicial  character  arise  from  the  belief  that  the  tribunal  is  impiii-tial,  as 
well  as  enlightened,  just,  as  well  as  seiircliinr:;.  It  is  of  very  i;reat  com- 
seipUMice  that  judjjes  slioidd  not  only  be,  in  fact,  above  all  exception  iti 
this  respect,  but  that  they  should  be  generally  believed  to  be  so.  'I'liey 
should  not  only  be  pure,  but,  if  possible,  above  suspicion.  Many  of 
the  olTeiices  which  will  be  charijed  against  public  men  will  be  generaled 
liy  the  heats  and  animosities  of  party,  and  the  very  circumstance  that 
juilgps  should  be  called  to  sit,  as  umpires,  in  the  controversies  of  party, 
would  inevitably  involve  them  in  the  common  odium  of  |)artisans,  and 
place  them  in  public  opinion,  if  not  in  fact,  at  least  in  form,  in  the 
array  on  one  side  or  the  other.  The  habits,  too,  arising  from  such 
fiMurtions,  will  lead  them  to  take  a  more  ardent  part  in  public  diseus- 


"  Slory  on  the  Constitution,  §  7G5, 
<iting  Kiiwlo  on  tlio  Constitution, 
ell.  xxil;  i  ]51ucljslono'«  Cdninientii- 
rii'S,  !>.  400,  Cliristian's  Note.  In 
Ni'W  York,  where  the  judges  of  tlio 
(Vmrt  (if  Appouls  nuil  tlin  Si'nato  form 
tlio  Court  for  tlio  Trial  of  Iiiipench- 
iiii'nts,  tlio  former,  with  exception  of 
.luilfjo  Cirov(>r,  have  almost  uuiforinly 


in  tlie  Appendix,  infra.  Tlio  cusos 
wlieri' iiiipeai  hinents  liav(>  heen  tricil 
ill  the  ordinary  courtH  have  nil  re- 
sulted in  ac((iiitlal8.  in  at  \:':\>t  one 
instance  where  the  proof  ai-'fiinst  the 
respondents  seemed  very  cleiir.  See 
The-  State  rx  ret.  .Vltoiney-Cieiienil  t'. 
linekley,  TA  Ala.,  Tm-,  Stale  of  Ne- 
braska V.  'Williani  Lec^se,  EN-Attorney- 


rL'(|iiired  far   stroni^er  proof  of   fiiiill  (rener;il,37  Neli.,'.)'2 :  StiiteoVNelniiska 

than  would  satisfy  au  orilinary  jury  r.    (leorHo    H.     Hnsiinns,     .Vltoriiey- 

lii'foro    voting    for    eonvietion.      See  General,    and    otliers,   37    Neb.,     !Hi 

Dorn's  Iriipeaehment  Trial  anil  Bar-  whieli  are  described  iu  the  Appendix, 

uard's  Impeaehment  Trial  deseribcd  infra. 


/■)J() 


IMI'IIACIIMKNTS. 


[ill.M'.  Xill. 


sidiis.  iiiul  in  the  viiidiciilicm  uf  ilirii'  own  imliticnl  (IccisioiiM,  tli;iii  scrms 
(U'siiiilile  for  those  who  iiiv  ihiily  ciillcil  upon  to  di'citle  upon  the  piiviitc 
I'i^htHiindchiinisof  nuMHlistiiijtiiishcd  for  their  political  con8f(pienc(',zi':il. 
or  iictivily  in  tlu'  riiniiH  of  piirly.  In  a  free  tiovi'rnnii'nt  lilic  ours  then' is 
a  picniiar  pro])ri<-'ty  in  withilrawln;;  as  niiicli  as  possibli'  ail  jinliciul 
fiinctionnrii'H  from  the  coutests  of  mere  party  strife.  With  all  ilifir 
I'lforts  to  avoid  tliem,  from  tlie  free  intercourse,  and  constant  changes  in 
u  ri'pid)iican  j^overnment  liotli  of  men  and  measures,  tliere  is  at  all  limes 
the  most  imminent  danger  that  all  classes  of  society  will  be  drawn  iiiin 
the  vortex  of  politics.  Whatever  shall  have  a  tendency  to  secinv  in 
triliunals  of  justice  a  spirit  of  moderation  and  exclusive  <levoti()ii  t(i 
juridical  duties  is  of  inestimalile  value.  What  can  more  surely  adviuici" 
this  oiiject  than  the  exemption  of  them  from  all  participation  in,  and 
control  over,  the  acts  of  political  men  in  their  ollicial  duties?  Whciv, 
indeed,  those  acts  fall  within  the  character  of  known  ciiuics  at 
common  law  or  hy  positive  statute,  there  is  little  dillicnlty  in  tlie 
duty,  because  the  rule  is  known,  and  equally  applies  to  all  persons,  in 
and  out  of  ollice ;  and  the  facts  are  to  be  tried  by  a  jury,  aeeordinjr  to 
the  habitual  course  of  investij^ation  in  common  cases.  'I'lie  reuuuk  of 
Mr.  Woodeson  on  this  8ul)ject  is  equally  just  and  appropriate.  After 
liaviuij;  enumerated  some  of  the  cases  in  which  impeachments  have  been 
tried  for  political  otTenees,  he  adds  that  from  these  '  it  is  ap[)arent  liow 
little  the  ordinary  tribunals  are  calculated  to  take  cognizance  of  such 
offences,  or  to  investiifatc  and  reform  the  general  polity  of  the  State.' "  '^ 

"  In  the  next  place,  the  judges  of  the  Su|)reme  C'oin-t  are  appointed 
by  the  executive,  and  will  naturally  feel  some  sympathy  and  attaeiunent 
for  the  person  to  whom  they  owe  this  honor,  and  for  those  whom  lie 
selects  as  his  conlidential  advisers  in  the  departments.  Yet  the  I'resi- 
dent  himself  and  those  contidential  advisers  are  the  very  pei'.sons  v.lio 
are  euiim'Utly  the  objects  to  be  reached  by  the  power  of  inqjeaeliiiient. 
The  very  circumstance  that  some,  perhap^  a  majority,  of  the  Coiiit, 
owe  their  elevation  to  the  same  chief  magistrate  whose  acts,  or  those  of 
his  conlidential  advisers,  are  on  trial,  woidd  have  some  tendency  Ic 
diminish  the  public  confidence  in  the  impartiality  and  independence  of 
the  tribunal."" 

'•  Hut  in  the  next  place,  a  far  more  weighty  consideration  is^  that 
some  of  the  meud)ers  of  the  judicial  department  may  be  impeached  for 
malconduct  in  ollice ;  and  thus,  that  spirit  which,  for  want  of  a  better 
term,  has  been  called  the  corporation  spirit  of  organized  tribunals  and 

i-!  Sloiy  ou  the  Constitution,  §  706,  »  Ibid.,  §  7G7. 

cltiug  2  Woodeson,  Leet.  40,  p.  G02. 


^  «'•'•] 


.iniXiK    STORY. 


627 


S(ii'ii'lii'r4.  will  naturnlly  lie  l)n)iip:lit  into  piny.  Suppose  a  jiiduc  of  the 
Siipn'iiic  Court  Hliould  liimsi'lf  be  iiiipi'siclii'tl ;  tiu!  niiinber  of  his  triiia 
wiiiilil  ijot  only  Ih!  diininislicd,  but  nil  tliu  attiicliiiu-nts  niul  piii'litiiitii'H, 
or  it  uiiiy  be  tlii'  rivalries  and  jealousies,  of  pt  ei'H  on  the  Hauio  bench, 
iiKiy  lie,  (what  is  praetically  almost  as  niisehievous)  nuiy  be  suspected 
1(1  be,  put  iu  operation  to  scrceu  or  exajifjerate  the  olTcncu.  Would  any 
pcison  soberly  decide  that  the  judges  of  the  Supreme  t'ourt  would  bo 
the  safest  and  the  best  of  all  tribunals  for  the  trial  of  u  brother  jiidfie, 
takini;  hunuin  feeliu<;s  as  they  are  and  human  inlirniity  as  it  is?  If 
not,  would  there  nitt  be,  even  in  relation  to  inferior  jiidL'es,  a  sense  of 
iinliiljience,  or  a  bias  of  opinion  upon  certain  judicial  acts  and  practices, 
which  nii<;lit  incline  their  minds  to  undue  extenuation  or  to  luiduo 
harshness?  And  if  there  slioidd  be,  in  fact,  no  dauf^er  froui  siu'li  a 
source,  is  there  not  some  daiif^er,  under  such  circumstances,  that  iv 
jeiiloMsy  of  the  operations  of  judicial  tribunals  over  judicial  ofl'ences 
would  create  iu  the  minds  of  the  community  a  broad  distinction  in  re- 
jrard  to  convictions  and  ])unishnieuts  between  them  and  merely  ])olitical 
olTenccs?  Would  not  the  power  of  impeaclunent  cease  to  ])ossess  its 
just  reverence  and  authority  if  such  a  distinctioti  should  prevail;  and 
especially  if  political  victims  rarely  escaped,  and  judicial  olllcers  as 
nii'ely  sulTered?  Can  it  be  desirable  thus  to  create  any  tendency  iu  the 
liiiblic  minds  towards  tlu^  judicial  departtneut  which  may  impair  its 
general  respect  and  daily  utility?  "  " 

"  Considerations  of  this  sort  cannot  be  overlooked  iu  inquiries  of  this 
nature ;  and  if  to  some  minds  they  may  not  seem  wholly  satisfactory, 
llicy  at  least  establish  that  the  Supreme  Court  is  not  a  tribunal  for  the 
trial  of  impeaclunent  wholly  above  all  reasonable  exception.  IJut  if  to 
eousideratious  of  this  sort  it  is  added  that  the  common  practice  of  free 
ijovernmeuts,  and  especially  of  Kni^laud  and  of  the  States  composing 
the  I'lnon,  has  been  to  coulide  this  power  to  one  department  of  the 
Icjrislative  body  upon  the  accusation  of  another;  and  that  this  has  been 
foimd  to  work  well,  and  to  adjust  itself  to  the  public  feelinj^'s  and 
prejudices,  to  the  dignity  of  the  lej^islature,  and  to  the  traniiuillity  of 
the  Slate,  the  iuHueuce  iu  its  favor  cannot  but  be  greatly  strengthened 
and  conllrmed."  '^ 

".On  a  review  of  all  the  departments  of  government  provided  by  a 
Constitution,  none  will  be  found  more  suitable  to  exercise  this  peculiar 
jurisdiction  than  the  Senate.  Although,  like  their  accusers,  they  arc 
reijrosentatives  of  the  people,  yet  they  are  by  a  degree  more  removed, 

'*  Sliiiy  on  the  Constitution,  §  7G8.      however.  Rawle  on  tho  ConsUtution,, 
"i  Il)iil.,  §   7l)U,  i>l).  502,  503.     See,       eh.  x.\ii,  p.  214. 


528 


IMPEACHMENTS. 


[CHAI-.  XIII. 


and  bold  their  stations  for  a  longer  term.  They  are,  therefore,  inoic 
ii!  .ependent  of  the  people,  and  being  chosen  with  the  knowledge  tliat 
they  "inay,  while  in  ollice,  be  called  upon  to  exercise  this  hifjli  function, 
they  liring  willi  tlieni  tiic  conlidence  of  tiieir  coiiHtitiiciits  Ihiit  liicy  will 
faithfully  execute  it,  iuid  the  implied  conii)!ict,  on  their  own  pint,  tluit 
it  sh:ill  bo  lioiie.stlj'  discharged.  I'rccluded  from  ever  becoming  acciiscis 
t!;eiiisclves,  it  is  tlieir  duty  not  to  lend  tlieniselves  to  the  animosities  of 
parly  or  the  prejiulices  against  individuals,  which  may  sometimes  un- 
consciously induce  the  House  of  Representatives  to  the  acts  of  accusa- 
tion. Habituated  to  com|)reheiisive  views  of  the  great  political  ielatioi,s 
of  the  country,  they  are  naturally  the  best  qualilied  to  decide  on  those 
charges  wliicli  n;ay  have  any  connection  with  transactions  abroad,  or 
great  political  interests  at  iionie.  And  although  we  cannot  say  tliat, 
like  tlie  Kiiglisii  House  of  Lords,  tliey  form  a  distinct  body,  wholly 
unintluenced  by  t;:e  passions  and  remote  from  the  interests  of  the 
people,  yet  we  can  discover  in  no  other  division  of  the  government  a 
greater  prol)ability  of  independence  and  impartiality."" 

Tlie.su  iirguinents  have  convinced  tlio  Ainerican  p  'oplc,  and  in 
all  tlio  States  except  New  York,  Oregon,  iiiul  Is'cliraska,  inipcacii- 
niciit.s  are  made  and  tried  siibstantliilly  as  is  provided  in  the  (^iiii- 
stitiition  of  the  United  States,  altliongli  in  a  fcnv  the  C'iiief-Jiisliee 
of  the  Supreme  Court  presides  in  all  impeachment  trials  cxcejjt 
wlieu  he  is  a  i)arty.  New  York  maintains  the  practice  established 
in  lier  first  constitution,  and  lias  a  special  court  for  the  trial  of 
impeacdime!.  :s  which  is  composed  of  the  president  of  the  Senate, 
tlic  ..tMKvtors,  or  a  major  part  of  them,  ,iiid  the  judges  of  the  Court 
of  Appeals,  or  tiie  major  part  of  them.'"  I'Lxjierienee  has  shown 
''.at  the  jutl.H'cs  have  been  more  disposed  to  ac(piit  than  have  the 
seiialufs.'*     Tiie  Ori'gon  Constitution  ordains:  — 

"  I'ublicolllccrs shall  not  be  iinpcached  ;  but  incompetency,  corrujilion, 
or  malfeasance,  or  inedlcieney  in  olllce,  may  be  tried  in  the  same  manner 
lis  criminal  of  ences,  and  jndginent  may  be  yivcn  of  dismissal  from 
ollice,  and  such  further  piinishinent  as  may  be  prescribed  liy  law."  '' 

In  Nebraska  impeaclnnenis  are  made  by  a  majority  of  the  legis- 
lature ill  joint  convention.      Tlie}'  are  tried  by  the  Supreme  Court, 


16  Uawlo  on  tlio  Constitution,  di, 

zxii,    pip.    2(il-W2,  <|uoIcm1   with    np- 

prf)val  In  Story  ou  Iho  Constitutiou, 
§775. 


1'  Now  Yorlc  Ooustltiition,  Art.  VI, 
See.  1. 

'*  Supra,  noli'  11. 
i»  An.  VII,  S(;i;.  19. 


no.] 


BLOt'NT  S     MVICAI'IIMKNT. 


■2'.) 


uiik-s.s  i  judge  of  that  court  is  iiii])eiicli('d.  wli  'ii  lie  is  ti'icd  l)v  tliu 
jiKljrus  of  the  District  Court.-'* 

Ill  Louisiana  there  is  a  remedy  alternate  to  iuipeacliuient  liy  a 
iiiiil  in  the  Sujireiiie  Court  by  tlie  Attorney-Cieueral  for  tlie  ic- 
iiiiival  of  tlie  judges  of  tin;  Court  of  Ajijieals  and  other  courts.-' 
These  provisions  have  not  been  tried  siillicieutly  to  determine 
wlitther  it  is  yet  safe  to  trust  the  courts  with  so  tremendous  a 
jiii'isdictiou  as  that  of  the  removal  of  a  President  of  the  I'nited 
SiiiU's. 

S  1>0.    History  c»l'  linpcafliiiiciits  before  the  tSeiiiite  of  tlie 
United  Slates. 

There  have  been  seven  impeachment  trials  before  the  Senate  of 
till'  I'nited  States,  of  which  twfi  fdy  ba^'O  resulted  in  conviction... 
Oil  .July  7tli,  17!'7,  William  Hlount,  a  senator  from  Tennessee, 
was  impeacheil  for  high  crimes  and  misdemeanors.  On  the  siinie 
(lay  the  Senate  ri^solved  that  the  respondent  be  taken  into  tin' 
custody  of  the  messenger  until  he  should  entei-  into  a  recognizance, 
which  lie  gave,  binding  himself  in  the  sum  of  i?i20.000  with  two 
suHicicnt  sureties  in  the  sum  of  81 0,000  each,  to  appear  and 
answer  such  articles  of  imj)eachmcut  as  might  be  exhibited  against 
liiiii.  On  the  following  day  he  wiis  t'xpelled  from  the  Senate  as 
};iiilty  of  a  high  misdemeanor,  entirely  inconsistent  with  his  jiub- 


lic    trust   and  dutv  as  a  senate 


T'l 


u'reiiiKiu    the    suretii 


d   ]i 


IS  jierson. 


nd   asked   to   be   (bschartrcd.      It  was  tli 


I'CMllX'CC 


that 


tak 


en  into  custodv 


tl 


le  messenffcr,  tin 


til  h 


lid 


eiitei'  into  another  d'coiniizancc  to  the  same  elTect,  1 


iinisi 


■If 


ill  tl 


ic  sm 


111  of  >?1,0(l(),  w:  'i  two  snUicient  sureties   in   the  sum   o 


.f 


iiiii  cac-h.  which  was  also  iriveii. 


Artich's  of  i 


Ml 


jicaclimenl  were 


lint   pr 


csented  until   Mie  next    session,  in 


nuarv. 


IT'.KS.     'I'll 


cliarued  ; 


That  the  res[)ondent  wh:'"  senator  had  conspired   *  >  crealt 


miotc 


nd  set  on  foot,  within  the   iui'isdictioi 


am 


.1(1   territiirv  o 


till'  I'liited  States,  and  to  conduct  and  carry  on  from  thence,  a 
iiiihlary  hostile  expedition  against  the  territories  and  dominions  (if 
^paiii  in  the  Floridas  and  Louisiana  for  the  jmrpose  of  wresting 
the   same    from   S]iain.  and   of  conquering  the    same    for  (ircat 


'  Art.  V,  Soc.  It. 


■^1  Art.  CC. 


180 


IMl'KACIIMENTS. 


[ 


CIIAI'.  XIII. 


IJiitiiiii,  with  wliich  Spiiin  was  tlieu  at  war.  That  at  tlio  saiin! 
lime  l:c  Iiad  cDnspiied  and  c(iiitiivc(l  to  excite  tlic  ("reek  and 
Cheii)l<ee  nations  of  Indians,  then  iniial)itin<f  within  tliu  L'i;itril 
States,  to  eoninienee  liostilities  aj^ainst  the  .snbjeet.s  and  i)Osses>i()ii.s 
of  Spain,  in  tliu  I'loridas  and  Lonisiana,  for  the  same  purpose,  in 
viohition  of  a  treaty  by  wiiich  tlie  United  States  and  Sjjaiu  h:iil 
agreeil  to  maintain  peace  and  harmony  with  all  the  means  in  tlieir 
power  anioncT  thi'  Indians  wlio  iidial)ited  tiie  country  adjacent  tn 


th 


undaries  of  tlu;  I'loridas 


'J' 


lat  lie  had 


furtl 


ler  coiispiivil 


iiid  contrived  to  alienate  and  divert  the  coididence  of  tl. 


Inil 


ian   trii)es  o 


nation.'- 


fi 


\U 


irawi< 


ins, 


tlr 


temporary  aireiit  of  tiie  I'nited  States  appointed  by  tlie  1' 
in  accord   .ice  \\  itli  law  to  ri'sidc  amon<;  tlie  tribes,  and  to  d 


di'iit 


iijiilii>li. 


impair  and  destroy  tlie  iniluence  of  that  at;'ent  with  those  tiilics, 
and  their  friendly  intercouise  and  understanding  with  him.  That 
he  had  conspired  and  contrived  to  .seduce  .laincs  t'arey,  tlie  iiiicr- 
pretcr  duly  ajipointed  b}-  tlie  United  States  to  reside  witliin  siid 
Imliaii  triiics,  from  the  <luty  and  trust  of  his  ap[ioinlnicnt.  and  tn 
ciu,'an'(!  Carey  to  assist  in  tlic  jiromotion  and  execution  of  iiis  said 
<;iiminal  intentions  and  cons] 


aracics  atorcsan 


(1   that  lie  hid 


or  tlie  saiiK! 


purp 
upair  tlie  con 


furtiier  conspireil  and  contriveil  to  dii 


^1 
lideiice  of  tiie  Cherokee  nation  in  tl 


sh 


le  "'iivcrii- 


aml  ii 

nieiit  of  tile  United  States,  and  to  create  and  foment  discoiilciits 


iffecti 


ih 


d  I 


iiid  disalrection  among  tlie  saul  Indiaii.s,  towards  the  govermiuiit 


Is    till 


if  the  United  States,  in  relation  to  tlu;  ascertainment 


uid  markiiis,' 


of  the  biiundary  line  between  tlu!  United  States  and  the  Ch' 
natiiiii.  which  a   trwity  betwei'ii   them    provided  slioujd   be 


ascci- 


tauied  and  mar 
scribed. 


ked 


iiy  coinmissioiii'is   in   a   manner  lliei'ciu  pu' 


lie  niaiiaLicrs  o 


f  the  House  of  liepresenta 


duded  .io 


A.  liayard  and  Ifobert  (i.  liariii 


Hloitnl's  counsel  wen^  .laird 


Iiigcisoll  and  A.  J.  Dallas.  'I'licy  lileil  a  plea  (o  the  jurisdiclieii  mi 
tile  ground  that  the  respoiideiit  was  not  then  a  senator,  and  was  net 
then,  nor  at  the  time  of  tlie  olYeiises  cliarged,  a  civil  ollicer  of  tin; 
I'^nitcd  States.  The  House  liled  a  reiilication  to  the  plea,  allc^iii;,' 
that  the  matters  therein  set  fcu'th  were  insullicient  to  excinpL 
lUouiit  from  answering  the  articles.  The  (lucstions  of  law  aiisiii^' 
thereupon,  wliicli  are  discussed  later,  were  argued  by  I'ayard  and 


§  '"'•] 


iii.orxT  s  imi'i:achmf.n"t. 


5S1 


llaiper  for  the  United  States,  and  by  Diillas  and  IiigersoU  for  the 
ii'^iondcnt.  'J'lie  plea  was  sustained  by  a  vote  of  14  to  11 ;  and 
ihr  lespondeiit  eoiise(jUently  aeijiiilted.  IjK)Uiit  returned  to  'i'en- 
iiissee,  wliere  lie  had  not  forfeited  the  eonlidenee  of  liiseoiistituents; 
i'lir  ho  was  subs('(|Uently  elected  to  the  Slate  Senate,  made 
speaker  of  that  body,  and  was  about  to  be  eleeted  governor  at  the 
tiiiu'  ol'  his  death,  not  long  after  his  expidsion.' 

rpon  the  destruetion  of  tiie  Federalist  party  on  the  elec- 
tion of  Jelfei'son  to  tiie  presideney,  the  Deuioerats  found  most 
III'  the  judicial  olliees  in  the  St.^tes  as  well  as  the  I'nited  Stati's 
lillcd  by  tiieir  political  opponents,  whose  terms  did  not  expii'o 
until  their  deaths,  or  at  least  a  long  period  of  time.  Tiie  in- 
ciuiibenls  had  iieen  chosen  from  the  "ranks  of  the  wealthy  and 
\\r:l  boiii";  and  had  made  themselves  oiiiioxioiis  by  their  airo- 
i,':iiue  to  tlie  jiooi',  and  to  those  who  had  not  attained  social  dis- 
liiiction  and  were  not  adliereuts  to  the  jirevailing  religious  sect. 
Thi'  opinion  whieli  now  generally  prevails,  tliat  judges  sliould  iili- 
si.iin  from  interference  in  iiolitics,  was  not  then  in  force.  It  was 
the  CI  instant  custom  for  their  charges  to  grand  juries  tn  iiiiluile 
arguments  on  the  party  (juestions  of  tiie  day;  iind  in  many  cases, 
uiieii  not  holding  court,  tliey  also  took  tiie  stump  during  puliti- 
e;il  campaigns.  Human  nature  would  have  lieeii  dilVcrenl  had 
inil  tile  Demorrats  who  liad  tlien  gained  nearly  all  llie  olliees 
which  were  sujiplieil  at  tlie  last  election,  tried  (o  iiil  the  Iielicbes 
al-ii  wiili  nil  inliers  of  tlieir  own  party.  An  assault  upon  ilie 
jiuliciary.  State  and  Federal,  was  maile  all  along  llie  lines.  In 
some  States,  as  N\'w  I  lamiisliire,  old  courts  ui^re  abolislied  ;inil 
iiiw  lilies  witli  similar  jurisdiction  created  for  the  sole  jinrposi^ 
III  iililainiiig  new  juilges.  In  I'ennsylvania,  one  obnoxious  Fed- 
enil  judge  was  removed  from  the  Common  i'leas  liy  impeaeji- 
iiient;-  ami  an  impeacliment  ul'  all  llie  i-'cilcrnl  jmlges  ul'  the 
lii'^liest  court  was  made,  lint  failed  tliniugb  tlie  ujirising  ul'  the 
I'lilirc  bar.  irrespecti'.'c  of  party  lines,  in  del'ense  of  their  nUicial 
rliiefs.''      A   similar  attack  was  made   upon  the  Federal  judiciary. 


;;  IID.   >  Wlim-loii's  Sliilo  Triiils,   ]i]\  iii'm.    Sj    '.K!,    iiiiil     Aii|ii'nili\    to    lies 

'-'"ill  'I'Jl.     Siiiiii' III'  till'  iii't;iuiii'MlM  iin>  Mihiini'. 
i|iinlrM  infra,  Sj  'XI  ■'  Iiii|ii'iicliiiiiMil    'I'l-iiil    of    Sliipprn, 

-  A'ldisiiii'H     liii|ii'iu'liiurnt     Trial,  biiiitli,  ami  Yeali's,  iiijru.  Api'i'iiilix. 


o32 


iMri:A('iiMi:\Ts. 


[C11AI>.  Xlli 


On  Fehinaiy  8(1,  1808,  JelTerson  sont  ii  message  to  tln'  ILms,- 
of  IJt'privSL'iitativcs  in  wliicli  liu  siiid  :  — 

"  Tlu>  oiiclosi'd  letter  mul  allidavits  pxliil)iting  iiiatter  of  coniiihiiiit 
agiiiiiiit  John  l'ickeriii<i,  J)istnet  .Iiidjie,  of  New  Ilainpshiri',  uliicli  is 
not  within  executive  enniii/.ancc,  I  transmit  tlieni  to  the  House  of  licp- 
resentiitives,  to  whom  the  Constitution  has  eonlided  a  power  of  iiisli- 
lutin<i  proceedings  of  redress  if  tliey  l)e  of  oi)inioii  th;it  tiie  cases  call 
for  them."* 

'I'he  result  was  the  iminediate  inipeaclimeut  of  that  JikIltc-  Tlie 
arlielcs  clmroed  disolu'diencc  to  tin;  law  in  the  coiirso  of  pro- 
ceedinfTS  on  tlie  pail  of  tlio  I'Mitcd  Slates  to  condcnni  tlu;  ship 
Eliza  with  its  carco  for  a  violation  of  llie  custom  laws:  where  the 
judg'c  (luliv('i'e(l  the  ship  to  the  claimant  after  its  attacliuicnt  hy  the 
marshal  without  requirinj,'  any  bond  as  the  law  direcied  ;  nfusid 
to  hear  testimony  ofl'ei'ed  hy  the  District  jVttorney  on  behalf  of 
the  rnitcd  States  ;  refused  to  allow  an  appeal  by  the  (iov(^rn- 
ment  from  his  decree  to  the  Circuit  Court  (d'  the  I'nited  States; 
sat  druidc  ujjon  the  bench,  usinj,'  profane  lantjuaLje  ;  "and  was  tin  ii 
and  tiiere  guilty  of  other  high  misdemeanors  degrading  to  his  owii 
tduiracter  as  a  judge  and  degrading  to  the  honor  and  dignity  of 
the  United  Slates."  There  was  no  ap[iearaiici'  on  the  part  of  the 
respondent.  His  son,  howe\er,  presenteil,  through  Uolieit  (i. 
Harper  as  counsel,  a  jietition,  alleging  the  insanity  of  his  father  ami 
praying  a  j)ostponement  of  the  trial  with  lea\f  to  defend  on  his 
beiialf.  Harper  expressly  disclaimed  any  :ippcarance  for  the  re- 
s|)ondcnt.  He  was  allowed,  against  the  protest  of  the  managers  of 
the  House  of  Representatives,  to  presentevidence  of  the  res[)ondent's 
insanity  in  sup[)ort  of  the  petition.  The  managers  thereii]ioM  re- 
tired to  take  the  oi)inion  of  the  House  respecting  their  further 
procedure.  The  House  discussed  the  matter,  but  took  no  action 
upon  the  subject.  ]\Ieanwhile.  the  depositions,  one  of  which  was 
s\V(U'n  to  I)efore  a  State  justice  of  the  peace,  were  read.  Tlicy 
tended  to  su]'port  tlm  allegations  in  the  ])etition.  No  action  was 
takt'n  by  the  Senate  tluueupon.  The  managi  is  then  returned 
and  continued  the  trial.  The  facts  alleged  in  the  articles  were 
proved.     One  of  the  witnesses  on  t\w  imiieachment,  the  maishal  of 

*  Annals  of  Cougross.  1802,  1803,  p.  400, 


^  >'"•] 


CilASK  S    IMI'KAtlHMKNT. 


033 


his  cDiiit,  swore  tliiit  .lu(lu;i'  ricki^rinp;  was  never  deraiifjcd  except 
uln'ii  (Irimk.  Otlicrs,  iiicliidino;  oiu:  of  tlu'  sc'iiiitors  i'rnin  N(;w 
II;iiM|i.sliirc.  liotli  III"  \\li(iiii  ul'tcr  thcii'  h.'slimoiiy  votid  for  an 
aii|uittal,  t(,'stified  that  I'ic-kuriu^-  was  insane  wlieii  sober.  'J'lio 
Senate  voted  that  the   form  of  piittinL;'  the  final  (jnestion  should 

lie:   '•  Is  the  respondent  guilty  as  eharged  in  the Article?" 

Five  senators  thereupon  retire<l  from  the  court, — 

'•  not  bceause  they  lielievod  .ludfio  Piekerim;  S'lilty  of  high  ciinics  and 
iiiisileiiR'auors,  Imt  liecause  thoy  did  not  choose  to  l)e  eompclled  to  give 
SI)  solcnni  a  vote  upon  a  form  of  question  wliieh  tiiey  considered  an  un- 
fnir  )iie,  and  calculated  to  preclude  tlieni  from  giving  any  distinct  and 
explicit  opinion  U|)()n  tlie  true  and  most  important  points  in  the  cause, 
viz.  :  as  to  tiie  insanity  of  Judge  Pickering,  and  wiiether  the  cliarges 
contained  in  the  articles  of  impeaclniient,  if  true,  amounted  in  liim  to 
liigh  crimes  and  misdemeanors,  or  not." 

'{"lie  impeaeiied  was  convicted  on  each  of  the  articles  by  a  vote 
(if  lit  to  7.  lie  was  sentenced  to  removal  from  oilice  by  a  vote 
(if  "JO  to  tl.  One  of  the  senators  who  voted  for  an  aequittiil  voted 
for  ins  removal.''' 

Meanwhile  [iroceedings  were  taken  to  rid  the  bench  of  a  still 
more  obnoxious  judge.  On  the  saiiK!  day  that  Judge  Pickering 
was  convicted,  the  House  of  Kepresentatives  adopted  a  resolution 
ini[ieaching  Samuel  Chase,  a  Justice  of  the  Supreme  Court.  He 
was  a  native  of  the  State  of  Maryland,  which  he  had  reiiresented 
in  the  Contiueutal  Congress.  During  that  time  an  unsuccessful 
attempt  had  been  made  to  impeach  him  in  the  luuise  of  delegates; 
ami  he  had  bi^cii  teni[i(ii'arily  ex(dude(l  from  the  jil  ice  on  accoiuit 
iif  crrtain  bnsiiu'ss  trauvactions  in  which  he  had  engagt'd.'' 

lie  was  afterwards  (•hiel'-jn>tici'  of  liie  ci'iminal  court  in  Ilal- 
tiinore,  and  while  holding  tliat  jiosition  was  also  commissioned 
cliief-justiee  of  the  (ieneral  Court.  lie  held  both  [lositions  until, 
aftei-  an  luisueci'ssful  attempt  in  the  house  of  delegates  to  remove 
liiui.  a  joint  resolution  passed  both  houses  of  the  State  legisla- 
ture declaring  the    iiuicture  of  the   two  olliees   tmconstitutioiial.^ 


'•Annuls  of  ("oiinrcss,  IKO'2- IHO.'), 
I'll.  'JC.T -'2(iH.  .Vtuiiilrt  (if  CoiiHrcsH, 
IMK!  IS(I4,  pp.  27,  7(1,  224-225,  2C8, 
l!T(i-271,  275,  29S,  315-307. 


'•  Wharton's  Stuto  Trials,  p.  43. 
'  ILiiil. 


534 


IMPEACHMENTS. 


[ 


CHAl'.  xm. 


Ts'(ilv,itlist:iii(liny  this  history,  lie  was  iippoiuted  Justiue  of  Iho  Sii- 
pii'iiiL'  Court  (if  Ihi!  I'liitud  St.itrs  by  Washington,  iigiiiiist  the  pni- 


tt'-t  of 


a  miiiiin'i-  I. 


Ur'  I'rcsiili'iit's  frii'iuls.'*     ]n  liis  early  lil'i 


luid  heeii  an  t'xtvenie  Denioci'at,  hnt  after  his  ajipointnieiit  he  Ih- 


ciinie  the  most 


aiiul  o 


i  tiie  l"\'<lerali; 


lie  attached  iuniself  with 


enthusiasm 


to  th 


supiii 


rt  of  J'lesident  Ai 


Il( 


i[ioi  ted 


the  enforcement  of  the  Sedition  L 


>th  1 


)y  ur^'inn'  grand  juries 


to  linil  indictments,  many  of  which  thev  r 


I'luseil 


d  l.v 


faiiii 


the  trial  of  those 


wlui  were  inc 


licte 


I! 


V  Lrross  lui- 


s  enaiL;'(  s  t(i 


grand  juiies  abounded  in  denuiieiations  of  the  l-^reneh  Jicvoliit 


Kin 


am 


1    the  Democratic  party.     He   took   the   stump  for  Adams  at 


he   time  when   Jert'erson  was  elected."     He  "ids.dv  insulted  tl 


bar  I 


)V  his  treatment  of  souk;  of   its  leadinu 


r   mcmiiers,   niclu(nMir 


Wirt.  For  this  reason  his  impeachment  seemed  the  he.>t  opiioi- 
tuuitv  for  the  insertion  of  an  oiicidnLT  wedno  which  mJLj'ht  residt, 
if  not  in  the  removal,  at  least  in  the  intimidation  of  all  the  Feil- 
orulists  on  the  Sujjreme 


Court  of  the  United  Slate 


.V 


iftei'  its  dcliverv  a  violent  charge  made  bv  .lustice  Chase  to  tli( 


grand  jury  at   IJalti 


r.iore  wa; 


tl 


e  occasion  of  the  followiiitr  hUtei 


by  the  President  t  i  .loseph  Nicholson,  who  was  then  one  of  tin 
manugcis  of  I'leki-ring's  impeachment :  — 

"  You  must  have  heard  of  tlie  extraordinary  charge  of  Chase  to  tli( 


.luiy  at  Balthiu 


Oiiiiiit  tills  seditious  and  olllcial  attack 


tl 


i(>  priiieiples  of  oiu'  Constitution  and  on  tiie  proceedings  of  a  State  Id 


go  uiipiniished  ;   and  to  whoi: 


poinledly  as  youi'sell'  will  hi 


ik.'il 


for  Iho  necessary  nieasiu'es?     J  ask  tiiese  (juestioiis  for  yian-  considera- 
tion ;   for  myself  it  is  hetter  that  I  should  not  interfere."  '° 

iNieholson,  at  the  advicci  of  friends,  declined  to  move  in   the 


liter.     The  fact  that  in  case  of  CI 


lase  s  removal  he  wo 


lUld 


liave 


,l)ah 


ilv  heen  his  successor  seemed   i: 


The  t:i>k  was  assumed 


Its 
Iph 


I  sulluuciit  i-eason.' 


ly  .fohn  liandolpli  ol  KoanoK( 


II 


is  igiie 


raui'e  of  law.  and  even  of  the  elenu'ntary  priiiei[)lcs  of  justice,  ami 
his  lack  of  tact,  which  was  never  so  apparent  as  in  the  managciiieiit 
of  this  pi'oscciition,  was  the  main  cause  of  its  failure. 


«  (rihl)'rt  Wolcdtt,  Vlll.  1,  i>.  300. 


"  Miu'im  tl)   Nicliolsoii,  All^;ust  n, 


"  Wharton's  Sun n  Trials,  i>ii.-l'itr).       IHOii,   Nieliolson'K  MSS.     Adiiius,  ilis- 
11  JefTci-soii  to  Nicholson,   Aliiy  13,      tory  of  the  Uuited  Btulos,  vol.  ii,  l)p. 
1803,  Jefforsou's  Works,  vol.  iv.  p.  isr,.       150  151. 


,0.] 


CIIASK 


IMl'KACIi.MICNT. 


O.iO 


'1  ln'  iii'ti<les  flmiijrocl 


■(iiiduit  on  till.'  tri;il.s  of  .liiliii  Fries  j'l 


ticasdii,  1111(1  James  'rii(iiii|is(iii  (  allciKh  r  for  \>^v; 


till'  St'ditiiii 


l,;i\v;  ;iii  iinpioiRT  iittfiniit    Id   iiKlucc   ;i  ■^laiul  jiay  in    Dfiawaii 
t(i  tiiid  an  iiidictiiiL'iit  a<Miii.st   tliu  inlitor  of  llif  ••  .Mirror  of  tlir 


Ti 


and  (ienoral  j\dvt'rtiser,"  for  bivacii 


tiie  Sedition  l^aw 


i!  a  perversion  (jf  his  ollicial  rijrjit  and  ilnty  to  address  a  frnvnd 


jury  in 


Maryland, 


"  fill-  tiie  iiinpose  of  delivering  to  tlie  siiid  firaiid  jury  an  intemperate 
;iiiil  iiilliiinnuitory  politieal  liaranjfiie.  with  inleiit  to  excite  the  fears  and 
ii'siiilimiil  of  tlie  said  grand  jury,  and  of  the  ^ood  ))iM>pie  of  Maiyland 
;e;;iiiist  tlieir  state,  goveriiinent  iind  conslitiitioii,  a  coiidiiet  lii;ilily  cen- 
siiiiilile  in  any,  hut  jiecnliarly  indeeent  ami  iinlieeoiiiinj^r  in  ii  jndjie  of 
the  Sii|ii'iiiie  Cuint  of  the  I'liiti-d  States,  :ind  nioieover,  that  the  said 
S:nniiel  Chase,  then  and  there,  under  jireteiice  of  exeicisiiiijr  his  jndieial 
ri;^ht  to  address  the  said  grand  jury,  as  iiforesaid,  did.   in  a  nninuer 


ilv  unwarrantable,  endeavor  to  exeite  the  (idiiiiii  o 


f  11 


lid  "r 


jiuy,  and  of  the  good  people  of  ^laiyliind  auaiust  the  government  of 


the  I'liited   States,  I 


y  delivering  opinions,  which,  even 


if  t 


le  judicial 


tuitiioiity  were  competent  to  their  expression,  on  a  snitalile  occasiiai  in 
;i  i)i()|iiH'  manner,  were  at  tluit  lime  and  as  delivered  by  hiin,  highly  in- 
tlceeiit,  extra-judicial  and  tending  to  ])rostitute  the  high  judicial  chaiae- 
li'f  w itii  which  he  was  invested  to  the  low  piiri)ose  of  an  electioneei ing 
iKii-iiMin." 


As  niisconduct  upon   Fi'ics'  trial  tlio  respondent  was  charged 
\\itli   delivering  an   ojjinioii    in  writing,  on   the  i|iiestioii  of   law. 


the    coiislrurtion    of    wliieli    the    defense 


the 


niiilerially  depended,  tending  to  ]irejiidiee.  the   niiiids  of  the  jury 

lel'ore  eoiiiisel  had  lieeli  heard 


•it  the  case  of  the   defemlint,  1 


his   de'fens 


with    reslrietiiii. 


tl 


le    (leleiKlanl  s    eoiinse 


1    fl 


iilViring  to  such  Fnglish  authorities  as  they  believud  iip[iosite, 
or  from  citing  certain  statutes  of  tlio  I'nited  States,  which  they 
deemed  illiistiative  of  the  positions  ujion  which  they  intended 
til  rest  the  defense;  with  dehairiiig  tlie  prisiuier  from  his  consti- 
tutional luivilefro  of  addressimr  the  inrv  on  the  law,  as  ^ 


tin 


1 
act,  am 


as  on 


1  at  tl 


le  same  time  endeavoring  to  wrest  from  the  jury 
their  indisptitahle  right  to  hear  argument,  and  deterniine  upon  the 
ipiestioii  of  law,  as  widl  as  the  nucstiiui  of  fact,  involved  in  the 
verdict  which  they  were  recpiircd  to  givi'.     The  allegations  oi'  fact 


'j3(! 


IMl'KACHMKNTS. 


[CIIAP, 


XIIL 


as  distinct  from  the  legal  conclusions  in  these  charges  were  cloiirlv 
proven.  Frii's  liail  been  indicted  for  treason  in  fciking  part  in  tiin 
Whiskey  Uehcliion  in  I'ennsylvania.  On  liis  first  trial  lu;  was 
{•onvicti'il,  hut  a  new  trial  was  granted  on  account  of  the  bias  (if 
one  of  till'  jurors.  Tpon  liis  second  trial  in  the  Circuit  Court  of 
the  United  States  in  rhiladeli)hia  on  April  29tli,  1800,  as  soon  its 
tlie  Court  opcncil,  Judge  Cliase  stated:  — 

"  tliat  tlic  Court  liad  made  up  their  minds  as  to  the  law  of  Treason,  and 
to  avoi(i  being  misinulerstood  they  had  rcdueed  tiieir  opinioi'  to  wi-itiiis,', 
and  that  they  iiad  directeil  tlnee  copies  of  the  opinion  to  be  macU^  out; 
one  for  tiie  District  Attorney,  another  for  counsel  for  the  prisoner  ami 
a  third  for  the  jury  to  be  delivered  to  them  after  the  case  liad  ^'one 
through  on  the  part  of  the  prosecution." '- 

'IMu'  prisoner's  cotmsid,  two  of  the  most  eminent  lawyers  at  tlie 
I'hiladelphia  l)ar,  Dallas  and  Lc\\is,  thereupon  stated,  that  as  theiv 
was  no  dispute  about  the  facts,  and  the  only  doubt  Avas  as  regaids 
the  law,  they  could  not  proceed.  On  the  following  day,  the  jiris- 
oner  was  brought  to  the  lar,  and  the  court  iusked  the  counsel 
whether  they  were  ready  to  proceed  with  the  trial. 

"  ^Ir.  Lewis  then  observed,  that  if  he  had  been  employed  by  tlitt 
prisoner,  ho  would  think  himself  bound  to  proceed  ;  but  hiiving  hrcii 
assifiued  as  his  counsel — (lie  was  interrupted  by  Judge  Chase,  who 
said,  '  You  are  not  bound  by  the  opinion  (U'livered  yesterday,  but  are 
at  liberty  to  contest  it  on  liolh  sides').  Mr.  Lewis  answered,  that  lie 
had  understood  that  the  court  had  made  up  their  minds  as  to  the  law, 
and  as  the  prisoner's  coun.sel  had  a  rijrht  to  address  the  jiuy  holli  on 
the  law  and  the  fact,  it  would  place  him  in  too  deiirading  a  situation  to 
argue  the  case  after  what  had  ])Mssed,  and,  therefore,  he  would  not  juo- 
ceed  with  the  defence.  Judge  Chase  answered  with  impatience,  '  You 
are  at  liberty  to  jiroceed  as  you  think  proper.  Addri'ss  the  jury  and 
lay  down  the  law  as  you  think  projier.'  Mr.  i^ewis  answered,  willi 
considerable  warmth,  '  1  will  never  address  myself  to  the  court  upon  a 
question  of  law  in  a  criminal  case.'  He  then  went  into  a  lenjitliy  !"l;ii- 
meut  upon  the  law  of  hifih  treason  in  Kiiuland,  previous  to  their  revo- 
lution, and  contended  that  the  courts,  since  that  period,  had  considered 
themselves  as  boiuid  by  those  decisions  which  were  made  prior  to  it. 

'^  Testimony  of  William  Rawlo,  who  was  counsel  for  the  iiroseeulioii  "U 
Chase's  Impeuchment  Trial. 


S  'JO 


j 


CHASE  S    IMI'KACIIMKNT. 


r)37 


.liiil^ie  Chase  observed,  that  the  counsol  must  do  as  they  please.  Mr. 
Diilhm  then  rose,  and  went  into  .1  {general  view  of  the  fjronnd,  wliieh 
li:ui  lieen  taken  by  Mr.  l^ewis,  and  eouciiided  with  his  determination 
not  to  proceed  as  counsel  for  Fries.  .Judge  Ciiase  observed,  '  No  oi)iu- 
ioii  has  been  given  as  to  tlie  facts  of  the  case.  I  would  not  sutler  the 
witnesses  against  those  persons  eliarged  with  sedition;!  combinations,  to 
lie  examined  before  the  trial  of  Fries  came  on,  lest  tlieir  evidence  might 
liave  been  heard  by  some  of  the  jury.  As  to  the  law,  I  know  tiiat  the 
tri:d  before  took  a  considerable  time,  and  that  cases  at  common  law, 
and  decisions  in  Kngland  before  the  Hevolution  of  the  law  of  treason, 
snch  as  the  case  of  the  man  whose  stag  the  king  killed,  and  wisiicd  the 
lionis  of  the  stag  in  the  king's  belly,  and  the  {-aseof  tiie  innkeeper,  wlio 
kept  tlie  sign  of  the  crown,  and  who  said  he  would  maki'  iiis  sc}n  heir  to 
the  crown.  'I'hese  cases  ought  not,  and  shall  not  go  to  the  jury.  There 
is  no  case  which  can  come  before  me  on  which  I  have  not  a  decided 
opinion  as  to  tiie  law;  otherwise  I  sliould  not  be  fit  to  i)reside  here.  I 
have  always  conducted  myself  with  candour,  gentlemen,  and  meant  to 
have  saved  you  trouble  by  what  I  did.  Is  it  not  respectable  for  counsel 
to  say  that  they  have  a  right  to  offer  what  they  please  to  tlie  jury? 
M'hat!  would  you  cite  decisions  in  I{onie,  in  Turkey,  or  in  France? 
You  will  now  proceed,  and  stand  aiMjuitted  or  condemned  in  your  own 
consciences  as  you  conduct  the  defense,  and  go  on  in  your  own  way. 
The  case  will  be  opened  by  the  attorney  — the  manner  must  lie  regulated 
liy  the  coiu't."  Judge  Peters  added,  that  the  jjapers  were  a!l  withdrawn. 
Mr.  Lewis  said,  the  paper  was  withdrawn,  but  the  impresnions  icniaiued 
wiUi  the  jury;  he,  therefore,  should  not  act.  A  pause  then  ensued  for 
:i  few  moments,  when  .Indge  Chase  said:  'You  can't  bring  this  cDtirt 
into  dillieulties,  gentlemen;   you  do  not  know  nii'  if  yon  think  so.'  "" 

Dallas  teslifiod  that  Cliaso  tlicii  told  tlu'  counsel 

"that  we  might  address  the  jury  on  the  law,  but  it  would  be  at  the 
lia/.ard  of  our  reputation."  " 

i>ntli  coiiiisel  tiicu  willxhvw.  Fi'ies  was  eonvictcMl  \\  itliout  (■(uiii- 
sel  and  sclilenccd  to  death.  -As  his  coiuiscl.  liowevt'r.  tilidouhledly 
expected  when  they  retiri'd  from  the  trial,  in  c()nsi'(|uciK'e  oi'  the 
iiregularity  of  tiiu  proceeding,  their  client  was  ])ardoiie<l  hy  Pri's;- 
ilent  Adams.''' 

■' Rawle's    tesliinony    on    ('liasi''s  '■■' Foithis  act  he  was  Boverely  erit- 

Imiii'aeluneut  Trial.  h'ized   liy  Ilamillon    anil    IMckerinK. 

"  Dallas'  tosliniony  on  Chase's  Ini-  (Wharton's  State  Trials,  pp.  040-648.) 
IK'aclinieut  Trial. 


i)38 


l.MI'HACIl.MKNT.S. 


[niA!-.  XIII. 


'l']w  iiiiv'oniliict  o!i  ( 'allciiili'r's  tii;il,  cliartjcil  at,'iuiist  \\\v  w- 
s)i(iii(lciil.  ciiiisistctl  ill  oviTMilinj,''  ii  (■liall('iif,fe  to  ii  juiyiiiiii  wIid 
\vislu'(l  lo  he  rxniscd  from  scrviiij,'  on  tlic  trial  liL'L'ausc  lie  had 
iiiadi^  up  iiis  iiiiiid  as  to  tin;  ])iil)li('atioii  from  wliicii  (lie  woiils, 
cliargfil  to  lie  lihi'lloiis  in  tlio  imlictnu'iit,  wcru  oxtractcd  ;  in  cx- 
(diuliiiL!'  till!  cvidciici'  of  a  material  witness  of  the  defendant  :  in 
eonniclliiiL,''  tlie  jjrisoiier's  eonnsel  to  reduei?  to  writing,  and  sulmiil 
to  the  insjieutioii  of  llie  court,  for  their  admission  or  rejeetioii,  all 
(piestions  wliieli  tliey  mea  to  j)roi)oun(l  to  tliiit  witness;  in  rifiis- 
iiii^f  to  jiostpone  the  trial,  although  an  allidavit  was  regularly  liled, 
.stilling  the  absence  of  material  witnesses  on  behalf  of  tli(!  accused, 
and  although  it  was  manifest  that,  with  the  utmost  diligence,  (heir 
atti^iidauce  could  not  have  been  procured  at  that  term;  in  the  ii  cuf 
unusual, nule  and  contempludiis  expressions  towards  the  ]irisiiiici"s 
(•(uinsel,  and  in  falsely  insinuating  that  they  wislied  to  ex(  it,'  the 
jiulilic  fears  and  indignation  ami  to  jiroducu  tliat  insubordination  to 
laA\-,  to  whi<di  the  conduct  of  the  judgt;  did,  at  the  same  tinu',  iiiaiii- 
festly  tend;  with  repeated  and  vexatious  interruptions  of  the  siiil 
counsel,  on  the  part  of  tlie  judge,  which,  at  length,  induced  them 
to  abandon  their  cause  and  their  (dicnt.  \\ho  was  thereuiion  coii- 
victod  and  condemned  to  line  and  imprisonment;  in  an  indceriit 
solicitude,  manifested  by  the  judg<  .  fur  the  conviction  of  the  ac- 
cused, unbecoming  even  a  public  prosecutor,  but  highly  disgraceful 
to  the  chai'acterof  a  judge  as  it  was  siibveisive  of  justice  ;  in  refus- 
ing to  follow  tlio  State  laws  on  the  subject  of  bail  which  it  w.i.s 
claimed  were  made  applicable  by  an  act  of  Congress;  and  in  refilling 
to  follow  the  State  law  on  the  subject  of  presentment  of  criminal  in- 
dictments, which  it  was  claimed  had  also  been  ailopted  by  ("ongrcss. 
These  last  two  charges  were  clearly  ill-founded,  since  it  is  well 
settled  that  the  acts  of  Congress  directing  that  the  laws  of  tin; 
several  States  as  to  the  rights  and  remedies  shall  be  followed  at 
common  law  in  the  courts  of  the  riiited  States  ilo  not  apply  to 
criminal  actions.  If,  however,  a  conviction  had  been  obt  liiicd 
on  them,  an  excuse  might  have  been  had  for  proe(!e(]ing  against 
Chief-Justice  Marshall,  who  had  himself  made  similar  rulings  to 
those  charged  against  Chase.'"  Some  of  the  other  (diaigcs  of 
misconduct  on   Callender's  trial   were  fiiv(dous;    since  it  seems 

"*  AiUuiio,  Ili^-lory  of  llio  L'lii'a'U  Slates,  vol.  ii,  p.  25. 


(Ml  ASK  8    I.MI'KACIIMKNT. 


I  fr 


aiiiiiiviH  Ironi  iii 


11  cxamiiiiitioii  of  tlir  trial  tliat  tlie  niipli^'iitui;!  Imp 
■it[>oiiciiu'iit  wiis  m;iilu  iiioii!  witli   tlic  ohji'ct  of  cxrltiiiif  syiii- 


]iit!iy   for  tlif  ai'ciisiMl,    tliaii   witli    tli 

(I 


idea    that     the    witlU'-sos 


uliii-i'  ti'stiiiioiiy  il  was  cI.iiuhmI  was   iiiatcnal,  naiiicly,  I  nsHii'iit 
Adiins,  tliL-   SfcieliU'v  of  Wai-,  and  several   si'iialois,  woiilil   liiivo 


til. 


acciisL'd.     .ludoc   Ciiasirs    ciiiiduct,    iiowcvcr. 


U. 


lllicliiublcdlv   tMUsed 


trial  was  so  si-aiidaloiis   tliat   il  would   li; 

liis   coin  ictioii    iiiioii    an    iiiqicaciiiiu'iil  at    tlif    pi'useiit  day.      lie 

liid    tl)!()il''''a)Ut    tilt'    ca-       c'lidcavol'cd     to    scciire    a    conviction. 


had   insulted   ciiiincnl    connscl.  anioiii,'  otiicrs, 


W 


nil  nil 


ucii    a    dci,n'ci'    thai    ihcv    linaliy    icfiiscd    to    conti 


Wirt, 
e    tlio 


ai'.;niiicnls    in  the  couisc  of  wliicli   tlii'y  iiad    liccn    intcii  njilcd. 
I    that    hiforc    the    trial  he   had    pnlilicly  aiinoiincL'd 


as    sill 


II 

••iii:;l    he    Would    leacli    the    lawyers    in    \"ii'eiiiia    the    diO'eienec 

iitv.i'cii  liiieity  and  the  licentiousness  of  the  piess."aiid  llr.it  he 


lia  1   told   the   marshal   t'lat  if  lie  had 


any 


-f  tl 


lose  ert'aliires  or 


liiiiplo    called    1  Jeiiiocrals "'   on    liie    panel    of   jliiyiiicii    lie    shoiihl 
slriiie  tlieiii  off.      He  had  eoiistantlv  thi(Hi"lioiit  tiiu  trial  referred 


to  cuunscl  who  were  men  of   nriUiro  aire,  as  ••  vc 


111 


eiitleinen. 


to  inll 
■d  11 


iieiiee  tile  jiirvliy  these  as 


IS  oilier  siicrs  wliicli 


1!<mil;mioi 


It  tlie  n 


rts  of  the  trial.      W 


icii.  on  the  con 


cMi.ionof  the  testimony  for  the  I'nited  States,  the  counsel  for  the 
ilcf  iidant  (mIUmI  as  a  witness  the  celebrated  John  Taylor  of  Caro- 


line ( 


ounlv,  a 


ft, 


wards  a  s.'iiiior  of  the  United  States,  and  the 


author  of  Sv'veral  iinportaul  works  on  constitutional  law,  as  soon 


le  was  sworn,  the  jii 


l"'e  dc 


led  of  tliciu  what  lliev  iiilciK 


led 


I  I  prove   liy   liie   wi 


lliess.      .\fter  tiiey  had    told  h 
f   til. 


le   oideiet 


a  jircvioiis  stateiiK'iil  in  writinj,'  or   the  (lueslions  wiiudi  they  iii- 
t'lided  to  ]mt,  and  after  this  hid  been  given,  excluded  the  evi- 


dence of  the  witness 
el'  tiie  I'nited  States 


The  liliel  had  charged  tliat  the  President 
t  and  had  proved  faithful  and 


was  an  anslociat 


lalile  to  the  British  interests.    'i"avloi'"s  testiiiionv 


was  offere 


til  prove  pari  of  these  charges  in  the  lihel.      The  court  held  that 


:h  tlie  points  niusl  h 
itlyl! 


ki'd,  or  neither  of  tlicm,  and  that 


scc|iiently  the  evidence  was  in  idiiiis-ilile.  It  did  not  apfiearat  that 
time  whether  witnesses  wouhl  he  ealleil  to  prove  the  other  ])oiiits  of 
lilt.'  liliel,  so  that  there  can  li,'  little  doubt  of  the  outrageous  impi'o- 
piictyof  the  ruling.  Calleiider  was  eonvietedandseatenced  to  a  line 


r)4() 


I.MI'KACIIMKNTS. 


[CIIAP.  XIII. 


(if  'rilidO  iuiil  an  iiii[)i'is()iimi;iit  of  nine  moiitlis.  As  Hooii  us  .IcITir- 
son  WHS  iii;iii!^niral('(l  lie  was  [jardDiied,  as  wun;  the  otluT  vicliiiis 
of  llic  Scditiim  l.aw.''^ 

It  was  clearly  I'loven  lliat  tlie  rospniidciit  at  tlu!  term  of  tin; 
Ciiciiit  Court  of  llii!  United  Stiittis  foi' the  District  of  Deliiwaic, 
held  in  June,  1800,  used  his  Ijest  efforts  to  persuade  the  grand 
jury  to  find  an  indietment  against  the  editor  of  the  "  Minor  nf 
the  Times  and  Cieneral  Advertiser."  The  cause  of  this  was  ;i 
series  of  artich^s  in  which  that  pajier  iiad  attacked  Prusidc'iit 
Adams  and  the    Federalists  iu  New   Knyland."* 


"  Siiprn,  §  'VI,  ovi'i'  Tii)ti>s  Id  nml  17. 

'*  Tlio  nll(>}ii'il  lilicl.-f  upon  wliicli 
tlio  Hrand  jiir.v  rrfuscd  U)  llml  iii- 
(lictriKMits,  ulUioiitili  urj,'('cl  liy  Chiisi- 
to  do  81),  W(>i-o  as  follows  : 

K.\tract  from  Urn  Tlio  Mirror  of 
February  Gtli,  1800  :     - 

"COMMUNICATION. 

"  The  JUumiii'iti  of  New  ICiifiland  are 
composed  of  certain  icclc^iaslicit,  who 
wish  for  political  sway  ;  and  of  laynion 
in  oflicc,  who  wisli  for  clerical  iiilUicncd 
to  retain  theni  in  phu'c ;  hy  the  means 
of  the  pulpit  and  sword  ;  or  church  and 
.State.  The  senators  and  reiiresenta- 
tives  in  Coniiress  from  Connecticut, 
belong  to  the  New  Knj,'lan<l  IliuniiiKtti, 
and  obey  the  I'ri'sident  of  Vale,  who 
rules  with  the  iniited  power  of  a  teacher 
and  ecclesiastic.  Mr.  Hilllunise  iiuide.s 
the  stat(!  treasury  so  far  a.s  to  g.iin  un- 
lawful and  unconstitutional  f;rants  of 
nioiu'y  for  the  Illniiiinnli.  The  wives 
of  Messrs.  I)w!:;ht,  Ilillhousp,  and 
Davenport,  of  ('(U'gress,  are  cousins; 
Messrs.  Goodrich  are  brothers  Messrs. 
AVolcott  of  the  treasury,  and  Griswold 
of  Conjircss,  are  cousins  ;  as  are  Mes-irs. 
Griswold  and  HilllKuise;  Mr.  Chauncey 
GoodriL'h  married  the  sister  of  Oliver 
Wolcott  ;  and  Mr.  Kleazar  Goodrich 
married  the  sister  of  Jlr.  Allen,  late 
of  Congress.  Thus  are  church  aiul 
slate,  and  the  ties  of  blood  and  mar- 
riage united,  to  form  an  hierarchy  and 
aristocracy  in  Connecticut,  which  some 


fail  not  to  call  a  nuinarohy,  controlled 
liy  Dr.  Dwight.  A  desire  for  ]ilaco, 
favor  and  power,  conducts  this  sysiein. 
Mr.  Tracy  and  his  son-in  law  at  hnim., 
arc  seeking  for  money  and  iufluciici' 
thro'  this  union.  Mr.  Tracy  wlslns  to 
bo  a  foreign  envoy  —  Mr.  Kleazar  fiooil- 
rich  is  looking  for  the  place  of  collector 
of  the  customs  in  Nciv  Haven. 

"  I'tesideitt  Dwi'/ht  has  a  host  of 
lirollirrs,  sons  a'ld  cousins,  who  want 
employment.  His  brother  Theodore 
wants  to  bo  a  district  attorney,  and  to 
have  n  .s(at  In  Congress,  or  the  uppiT 
house  in  Connecticut.  Tapping  liceve. 
one  of  the  IHuntiuiiti,  and  one  of  tlio 
judges  of  thc^  superior  court  is  a  pro- 
moter of  the  tyranny  assumed  by  nieia- 
bers  of  Congress  from  Connecticnl,  ia 
order  to  obtain  the  place  of  district 
judgc>.  The  above  is  a  clue  to  the  sedi- 
tion law  — certain  gentlemen  did  not 
wish  to  have  their  conduct  and  designs 
investigated  at  home;  for  this  ciui.se 
they  have  wished  to  destroy  the  Kditor 
of  the  IJce,  and  introduce  a  system  of 
terrar.'' 

Extract  from  the  Mirror  of  Fi'briiary 
8th,  IHtiO:  — 

•■COMMUNICATION. 

"In  our  last,  wo  presented  a 'elite' 
to  the  poliiics  of  Connecticut,  from  tlu'lr 
desire  to  obtain  place  and  favor.  We 
now  exhibit  a  due  to  the  New  Ilainp- 
shir<'  aristocracy.  The  collector  of  the 
customs,  loan  offleer,  marshal,  one  of  tlie 


,<  liO.] 


('MASKS  imi'i:aciimi;\t. 


oil 


The  cliiirv't;  to  tlic  ^'I'liiiil   jiiiv  in    Mui  vlaml  \v;is  (Iclivcrcd    May 
iM.  iMKi.      It  coiitiiiiicil  ciitirisnis  uiioii  tlii;  loiMluct  (if  tlic  PriiKi- 


spiiiitorHof  CdiitJresH,  1111(1  two  of  tlKiipp- 
ri'-(  ntiillvcs  ill  tliiit  biicly,  went  o/i/  ami 
itentml  liirien,  .  lid  liiivo  over  cdiitiiiuuil 
III  ho  siicli.  'I'll  1  coiunictiir  for  tliu  nii- 
valnrsliiii  l)iiil('ciii,'(l('i)iirtiiii'Mt  was  also 
iiliiry  — ho  is  iirotluT  In  oiioof  the  rcp- 
ri'sciitiitivcs,  \vh()s(!  nislcr  is  iiiiirrloil  to 
lliu  ilisli'ii't  jiiilj;i',  (wliosi^  former  r<!- 
si>ic'i  for  Ihi!  indcpciKliMici'  of  Aiiicrica 
i-fdouhlfiil).  Those  Ihrec  p'lillcMiii'niiro 
uliiid  to  llio  I'resiileiil.  ot  Ciinilirhlfiecol- 
li'U'e,  wlio  married  the  sister  of  tin?  wifo 
lit  the  (llslriet  jiiilKPi  and  of  tl"'  naval 
coiiiractiir  and  oiio  of  tlio  representa- 
tives. 

"The  former  Inry  senator  is  Mr. 
l.ivermore.  The  representatives  are 
Messrs.  Sheiiff  and  Oordon  ;  the  dislrlet 
jiiilL'f  Is  a  Sir.  I'Uilcerint? ;  tlie  naval  con- 
traitor  is  a  Jlr.  .laeob  ShealT;  the  mar- 
sIkiI  is  Sir.  I!(ij;ers;  the  loan  ollirer  is 
.Mr.  Pieree,  a  cousin  to  tlio  bte  Kovernor 
Weiitworth,  and  the  noUector  U  Mr. 
Martin,  whose  wife  i.s  sister  to  Mr. 
I'iiire.  Dwiylil  and  AVillard,  as  heads 
(if  liler.iry  iiistitnlions  and  eeelesiasti- 
c:il  societies,  thus  have  the  chief  sway  in 
Cuiiiieiticul  and  New  llampsliire. 

"  Tlic^rciiuicDi'dl  ]Vliiij!i  und  uhl  luricfi 
hniv  llic  ciinlrdl  in  our  niilUinul  iiffiiirK  { 
are  ciiiispiciious  in  piihlio  iimcessions; 
and  wear  the  weed  of  monrnin!;  tor 
Wasliingtou,  whom  they  have  often 
hiaiiiled  with  the  epithet  of  lieliel" 

K.xtract  from  the  Mirror  of  February 
2il,  18UI);  — 

"COMMUNICATION. 

"  We  hav(^  prcHeiited  the  readers  with 
a  view  of  the  New  lCiii;larid  lUiiiiiinati, 
and  a  clue  to  Britisli,  tory  or  monarch- 
ic;il  inC.uence,  in  New  Hampshire  and 
Coiineetii'ut,  in  which  intolerance,  and 
a  Want  of  duo  respect  to  the  revolution 
and  it.i  promoters  and  defenders  must 
be  clearly  been.  This  foniiiilablo  Imdy 
are  liedged  round  by,  or  shelter  them- 
selves under  the  scditlim  l.iw, /iry  mar- 


shals and  juries,  which  may  lie  packed 
nut  of  llrilish  rommixsiirien,  and  the 
plunderers  of  our  farms,  the  murderers 
of  our  fathers,  brothers  and  .sons,  or 
those  who  burned  rinreliurehes,  ami  laid 
waste  ourlilerary  and  Ipenevoleiil  insti- 
tutions duriiii;  the  last  war." 

Kxtraet  from  The  Mirror  of  March 
I8II1,  IHIII):  — 
"  I-'or  The  Mirror,  Ac. 

"  What  are  the  fruits  of  .lohii  Adams's 
admlnisiraliim?  tic  has  eni;a^'ed  lopiiy 
8  ])er  eenton  live  millions  of  dollars.  He 
has  eslablished  a  stiindiii,'  army,  which 
besides  its  enormous  I'xpense  of  four 
ndliions  and  two  hundred  thousand  dol- 
lars, keeps  a  number  of  cilizens  in 
fear  of  their  lives.  He  has  obtained 
an  appropriation  for  supportlii!;  foitl- 
lications,  of  VOO.flUO  dollars.  For  the 
navy  17!W,  fiuir  millions  three  liun- 
dred  and  fifty  tliousand  dollars,  amount- 
ing ill  the  whole  to  nine  millions  two 
hundred  and  fifty  thousand  dollars, 
exclusively  of  a  numlier  of  volun- 
tary and  umiscerlained  subscriptions 
for  Iniildins  and  ('(luippini:  ves.sels  of 
war,  for  which  the  subscribers  receive 
interest,  at  8  per  cent.  He  lias  levied  a 
ilirccltdjr,  which  in  this  state  annmnls 
to  more  than  the  whole  of  the  tax  paid 
into  our  state  treasury.  Ib^  has  jiro- 
cured  the  enaction  of  an  alien  and  se- 
dition law,  which  are  a  curse  lo  any 
country  in  which  they  exist.  lie  has 
given  orders  to  one  of  our  judges  to  de- 
liver up  Jonathan  Kobblns,  an  American 
seaman,  to  be  tried  by  a  Itritish  court 
martial,  although  the  name  of  the  per- 
son accused  was  Nash  ;  in  direct  con- 
tradiction lo  the  laws  of  nations,  and  of 
our  constitution.  And  finally  I't  .'j  'o 
liav(!  a  new  loan  of  :',ol)0,000  d.illar.s,  for 
which  he  will  be  obliged  to  pay  8,  and 
probably  10  per  cent."  ('.ha.se's  Im- 
peaclinidit  Trial,  Evans'  l{eport,  Ai> 
pendix,  pp.  68-00.) 


'>[-2 


i.mi'ka('ii.mi:nts. 


[chap.  \ii! 


lidlislii'd  die  ollii'i's  of  CiiouiL  .lud" 


erutic  ))iirty  lor  liaviii^  :i 

tlio    ruiti'd    States,    the    leceiit  cliaiurert   in 


tlie  ( 


nnstitiuiou 


:\I;nvlai 


viand   wliu-u   establi 


■lied 


iiiiivei''-al  siim-a''( 


ffi 


ami    llie   I'iuiIp 


chaiiLfes  contiMiijilated  in  llie  judiciary  of  tliat  State,  whieli,  it  w; 


"  will,  ill  my  judiiincnt  take  away  all  sofuiity  for  properly  and  poison 
iilierty.  The  independence  of  the  national  judiciary  is  already  shiikt 
to  its  fonndation,  and  the  virtue  of  the"  i)eople  alone  can  restore  it.      11 


inilepeiKleiice  o 


f  the  jiidires  of  this  States 


he  entirely  destn 


the  hill  for  aholishiiiij;  the  two  siii)renie  courts  should  he  ratified  hy  iIm 
next  iieneral  asseiiilily.  The  change  of  the  State  C'onstitntion  hy  allow 
in;j;  nniversal  snlVraiie  will  in  1113'  opinion  certainly  and  rai)idly  deslni; 
all  protection  to  iiroptM'ty  and  all  security  to  personal  liherty,  aiul  en 
ican  coiistiiiiiion  will  sink  into  a  niohocracy,  the  worst  of  all  pos 


i'l)ii 


hi 


sihlo  governiiieuts. 


Ti 


ic  iiriiicipal  nianatrc 


■rs  for  the  Ih 


onse  of  l{(?prc'S(>ntalivcs  were 


John    Uaiuhilpli  and   .I()sci)li  Niidiolson.     Judge   Cli 
were  l.,utliur  J{.  Martin,  U.  (i.  JIarpcr  and  Joscphsoi 


ise  s  eciun-i'l 


llopl 


if  whom  Harper  had  takei:  part  in  the  trials  of  hoth   lil(Uiiil  iiimI 


iclverni<f. 


Picl. 


tl 


TI 


le  prosc('Utiou. 


icv  wei'c 
'I'll 


(liaii  a  niatcli  witii  tlie  counsel 


fur 


iiUswcr  o 


f  CI 


lase,  whi' 


h  was  (iuit(!  lengtlr 


as  jirepared  witli   great  al)ility.      It  a(hiiitted  most  of  tlie  faits 


cliarjjeil  111  the  art 


til 


i  of  iinpea(dimeiit ;  hut  defended   tlniii  ly 
arguments  \v<dl  eah-uhited  to  ajipeal  to  laymen  as  W(dl  as  lawyeis. 


Aaron  liurr,  who  was  then  \'iue-I'i('sid('iit.  ju'esideil  at  tiic  li 


l:ti 


lie  iiianau'cis,  esneei 


ailv  .(olin  Itandolph,  (lisphneil  urcat  weakiie; 


in  tl 


UU.' 


iLTUments,  and  were  inconsisUint  as 


v;liicli    a    conviction   \\;is   (leinaiu 


h'd. 


'OllH!     I 


to   tl 
if     11 


c  principle 


on 


that 


an   iiiiinr.irliMicnt  w 


111  the   nature  ot   an   iiuiucst  ot  oll)ri 


icm    conteliilei 

fli' 


and  liiat   tl 


lonoiMit  mi 


da 


rcn\ove( 


I  altl 


loiigh  not  gni 


lt\ 


)f    anv   crime,    while    others    adniilied    tliat    what    in    s'lhstance 


lied  t. 


a   crime   must  he   ] 


irovcd  hcfoiv  a  conviction. 


arguments   o 
lian  1  ahle,  vi 


f  tl 


IC     ('(UlllSi 


d    for   the    (hd'endaiit  were    <mi    the  ot! 


gorous  and    logica 


u  all    tliu   cha 


il.      The    result   was   an    aiapiii 
the  arti'de  which  cliaiL!' 


lal 


rges  ;   tin  ininioiisly  on 
his  failui'c   to    follow,  on   Ciilleuder's   trial,  the   law  of  \'ir;,diiia   as 


to  l,ail ;  l)y  a  majority 


iO  to  4   on   that  whi(  li  charurd   that  in 


the  same  case  ho  iiad  refused  to   follow  the  law  of   Virginia  p: 


^  ','0. 


I'KCK  S    I.MIMCACII.MKNT. 


543 


\  nllli'T 


for  the  adjournment  (if  ininiiiial  t  iuls;  and  1)V  ii  minority 


of  nioic  llian  onc-tliird  in  liis  favor  uj 
liiL;lii'-t  votu  auaiist  liim  was  !'.•  lo  l."( 


ion    i:t  otnt' 


til 


ar 


tides.      Tl 


in  t'le  artii-io  in  relation  to 


Ini'sre  to  tl 


rantl  jury 


at  Haltimoiu.     'J'lie  maioritv  o 


f  ih 


ildiinn ml   party   ;u   tli 


■>enale  was   then  more    than   two-thirds 


Imi   the  manner  m  wliicli   tlie  impeac 


inient  was  eondnctcid,  and 


the  fear  that   a  convietion  \\'(Mild  result  in  fuither  attack's  fiu  th 


SuiireuK: 


Conitof  the  I'nited  States  were  undouliledlv  the  reasons 


hat    lU'lueei 


a   nuudier  o 


the  Norll 


foil, 


•I's  of  .lefTersiiii  to 


vnte   for  an  ae(|uitlil.      It   is   not  likely  thai 


similar  o 


ITen 


if 


cnuniiiited  liy  a  jU(lL,n!  at  the  present  tlay,  would  remain  niqainished. 
The  result  of  the  impeacliment  was,  howi'ver.  in  one  I'espeet  lii'iie- 
lirial.      Chase  was  harmless  duriiifr  the  shoit  iieriod  whieh  he  sur- 


vived  u|io 


■{'hi 


u  the  heneii.''' 
h 


next  impeaclnuent  tri 


that  of  .lames   II.  Peek,  judi^^e 


the  District  Coint  of  the  Tnited  States  for  the  District  of  .Mis- 


S'lUii.  n 


1   liS:iO  and   liSlil.      A  lar'-e   nuuiher  of  suits  aijaius 


■;l  Ih 


m 


ted  Stiles  founded  upon  Sjnuiish  land  claims  wi 


|ien( 


line; 


in 


li 


rt.     Ah 


ei'  an  opii 


111   in  fa\orof  tlie    riiited  States,  in   a 


suit  ayainst  them   li\   the  widow  and  heirs  of  .Vutoine  Sunlard, 


m 


Is-.',").  I, like  Kdward  Lawl 


wless.  tl 


hiintiir 


isel,  pulilished  an 


auiiiu  nious  letter  in  a  newsoaper  in  whiidi  lie  temperately,  and  with 


re  nufairuos  than  is  usual  in  newspaper  aifjiimeiit 


1" 


iited 


1'-'  K.'priii,  cf  (lie  Triiil  (it  tlie  Hon. 

S;|I!II1(>1  Clllise,  one  of  till'  AsSOclntO 
•Iii^lii'i's  (if  tlio  Sii|i|('iiie  ('oiirt  (.f  tlie 
t'nilcd  SliilcH,  lii'forc  the  Itiuli  Court 
of  Iiii|ii>;ii'liiii(Mil,  ('Oiiiposcil  (if  till' 
S..|i,ite  (if  the  riiilcci  States,  fur 
I  li.niics  exliiliil"!!  (ij^iiiti:  (,  liiiii  I'v  llic 
House  of  l!i'|ireseiiliUiv('s.  in  llie 
iiiiim^  of  llii'iiiselvi's,  and  of  nil  the 
l''oi.l,.(a'  llio  riilKMl  Sillies,  for  Hi^■ll 
Ciiiiii's  .V  Jtisili'iiieuriorH,  sii|>|iiisi'il 
to  h:!V(>  lieiMi  liv  liliii  coiniiiilted  ;  with 
ihi)  noci.'ssmy  Docuineiits  mid  Onidiil 
l'a|i('rs,  from  his  Iiiipciieliment  lo 
liiial  A(M|iii|lid.  Tiikcii  in  SlKirllmiiil, 
liy  CImrles  Kvtuis,  and  Ihi'  .Vrminicnls 
of  Coiiiisi'l  revised  liv  tlicm  'loni  Ids 
Miiiiuscriiit.     lifiliinioii! :   I'riiiled  lor 


S.iiniiel  Hiitler  and  (icor^e  Ki'iitinK(>, 
Iso.'i,  pp. -JUS,  witli  .Vppi'iidixeontaiiiin'.; 
Ilio  ple.idlii.^s  and  cxliiliils,  pp.  (IH. 
Trial  of  S.iinnel  C'liiise,  nn  Assoeiale 
.rilsliee  of   the   Slipri'llie   (.'ollll    o!'  llie 

fnited  Slides,  inipcarlied  dy  (lie 
Hoii-e  of  Hcprcscnlalivos  for  Ifigh 
Criiiiis  ,i!id  Misdoiiieanois.  Iiiken  in 
Slioriiinnd  liy  Siiniiiel  11.  Sniilli  and 
'riioinasliloyd,  vol.  i,  lip.  ;i.S7.  and  vol. 
ii,  pp.  Illll.  WasliiiiKton  Cily.  I'riiiled 
for  Siiniiicl  H.  Sniidi,  ISO."..  History 
of  llie  ruilcd  Slates  liy  Henry  Adams, 
\ol.  ii.  pp.  Its  l.l!),  2IH  '214.  History 
of  Illll  Unilod  Stales  liy  John  Haeh 
M.>raslcr,  vol.  ill,  pp.  102,  108,  173, 
IHl,  !S'2. 


644 


IMrKACIlMENTS. 


[('IIAP.  XIU. 


out  ceitain  errors  intowliicli  lie  cliiiineil  llie  jn(l<,'e  Imd  fullouw 


hen 


reiiileniit' 


tlmt 


)y  the  Siiiin^iiic 


'l"l;e  ilccisiiin  was  sulise([Ueiitly  revel- 


Cdurt  of   (lie    rnitnl    Stat 


.liwlue    I'erk 


soon  as  lie  leail  the  ailiel 


e,  iiroiitrii 


t  L 


iwlcss   hdore  liiiii  hv  an  iil- 


taeliineiil.  alaised  liiiii  I'nr  some  lime  in  opiMi  (•(Hirl,  lii'M  liim  ^^iiiliy 
of  ciiiiteniiit  ami  ordcreil  his  iiii]iiisiiiimcnt  lor  l\viit y-lour  hours 
ami  sii^pciisiiiii  t'iom  the  hir  nf  that  eoiiit  Ccir  ei^'lileeli  calciiilai' 
nioiilhs,  tile  result  of  wliicji  was  to  iiiMetieaily  pirvenl  him  fidiu 
any  fnithi'r  |iroseeutiini  nf  Spinish  1  ind-elaims,  since  the  time 
alhiucd  for  thi'ir  ]irost'eiilioii  expiicd  durinL,''  or  shortly  after  hi-^ 
term  of  puiiishmcnt.  Lawlc-s  immcilialely  comjilained  to  tlie 
llonseof  licprcsenl  ilivcs.  In  Is^ii.tlu'  1  !■  lUsc  ( 'ounuittee  on  tlio 
•Indiciai  \-.  one  t\\'  wlioiii  wa>  l>aiiiel  Wchstn,  ie|ioitrd  that  the 
petit  ii 


should   have  1. 


to  withdraw. 


1 


wii   vea 


rs  later,  tin 


jii'tition  was  auain  prtscnlcil   mihI  I'ld'erri'd   to  the   .Iiidiciaiv  Co 


hnt  no  rejKut  was 


initti 


tx-r  was  auaiii  reierrcd  to  them, 


iiiallv ,  in 


ni- 


Is-J'i.  when  the  iiiat- 


Ihe  .ludiciaiy  (■ 'mnnlt(!e  ii  ported 
ill  favor  ol'  an  impeaehuient,  w  liioh  was  ar-ordiiiijly  voted  aiul  tiicd. 
'I'iie  niaiiai;i'is  of  liie  House  wrre  James  Huchaiian.  afti'rwai'ls 
President  of  tin-  I'nitcd  States.  Henry  li.  Storisand  Anihrose Spen- 
cer of  New  York.  (leoiLfc 
A.  WieUlifl'e  of  Keiitn.k 
Will 


AlelMillie  of  South  Carolina  and  Charles 


Th 
Win    iiid  Jon  iih  in  .M( 


iinsid  for  the  respondent  \v 


redilh. 


Tl 


le  case   was  trieil  with 


th 


irieal  aliilily  on  l>  tlit  oides.     'I'lie  hest  <iis,'Ussioii  on  the  suhjeet  nf 
impeaehalile  filleiiseis  with  uhieli  the  writer  is  a  ((nainted  may  he 


r<    ni<I  in  the    irjuiiiien^  ■/.!  Jlie  ttial.  cs 


leiaailv   in 


those  of  \Viil< 


JiflV,  ltii(duui:tH  iiiul  Wirl.  It  .ippears  clearly  that  the  I''iii;li>li 
!it4llio;iti«-  JMstiflfd  Jiidj»e  I'ei'k  in  |iMnisliiiin-  a  criticism  njion  eis 
deci'sioii  as  a  (■i>utein|it  of  coiiil.      It  seemed   to  the  Senate  that 


it  least  jn  'ilied  in  asHUtniiiiT  that  siieh  |iow cr  cxis 


Stedi 


he  was  at  least  jn  Mlied  in  asHUtniiiir  tliat  siieii  p 

that    tht'^'-  Was   u>>  such  clear  pioof  <d'  malice   in   its  exenise 


.nl.l 


jiixtify  his  eoiiv  i  -tioi 


n. 


was  cohse(picntl V  acr|iu 


ilted   h 


a  ««»»i  of  -li  of  <'uiltv  to  lil  of  not    yniltv.     Daidel  Wehster  voti 


ith  the  Ml  tioiit  V.  and  1 1 


South  ( 'ar(dina  with 


vnnorit  V. 


"•W-Jiilaril  r.  V.  S.,   1    P.-w-rs',  510;  Oistriet    Cemt    for    llio    Disiiiei    nf 

•.  «-.  ID  Pi-tfT-^.  IIHI.  MisHduri,    liefoi-e    tlie    Seiiiile   nf   tli<' 

-l  Hi-piMTt  of  t ho  Trial  ef  .time's  II.  riiiled    SUile.-i,    on    ,in    iiii|ioneliiie'iil 

Peeli.    Aiiilun    <-f    llii>     I'l.iled    Slat'K  pri'lVrreil  liy  I  lie  Hoil^i>  of  U''|)ri'S«'li1«- 


§  '.H.I. 


lirMl'IIUKVS      IMl'KACilMKN'T. 


Till'   I'csiilt  \v:is   til 


mssiicre  o 


f  ;i   law  limitlniT  tli 


power  ol    till) 


(  oiirls  (if  the  I'liitcd  States  tn  |iiini>li  for  coiilciiipt  to 


II'  mislii'liavior  o 


f    !UI 


iH'rson  or  ncrson 


IS  ill  the  iircsfiicc  of  tin'  siiiil 


cnurts.  or  .so  near  thereto  ii.s  to  olistiiiet  the  !i(liiiiiiislr:itioii  of  jiisliee, 
the  misbehavior  of  any  of  the  ollleei-s  of  said  coiii-ts  in  the  olheial  traiis- 
:iclioiis,  ,'iiul  tiie  (lisoliedieliee  or  resistance  livanvsiieli  ollicer,  or  livaiiv 


Iiar;y,  .1 


iiror,  witness,  or  other  iiersoii,  to  any  lawful  writ,  iiroeess,  order 


lecree,  or  eoiniiiaiid  of  the  said  court 


larh's 

Mere 

wiili 
I'l't  (it 

ay  he 

Wi  li- 

iell>ll 

OH  Ills 

e  that 

:   aii.l 

i-e    a> 
l.v 

.1.(1 
iriiv.-' 

IM-I        of 

ef    111" 

cIlmh'IiI 

■es«>111ll- 

w 


llic  Southern  ( 'oiifeilei'acy  was  formed.  S.  II.  1  Iiiinjilncys, 


t   judo-e  of   till'   Inited  States  for  tl 


le  disii'ie 


if   Tl 


,1  lepted  and  di.seliaryed  the  diit  ies  of  a  similar  imsition  under  the 
(  iiiifedcratc  (ioverninent  without  resicruiuir  tlio  oHiee  held  hy  him 
miller  the  ("nited  States.  He  was  eoiiseijuently  iiiijieaehed  and 
hefore  tlu;  Senate  in  Jinie,  18ti2.      'I'lie  articles  ehaiired  him 


irici 
ith 


1  reliell 


Willi  a  |inl)lie  s|ieeeii  incitiiiir  revolt  am 

siiiinion   and    (io\eninu'iit   of    the    I'nited    Statei 


loll  aLTaiiis 


t  theC 


ilili 


illliile 


laratiou  therein  of   the  ri^ht  of  seees- 

f 


ion 


litl 


I  supiiort.  ai 


i',i''\  and  asjfreemeiit  in  the  ordinance  ot  seia'ssion  ;  with  or!;j-ani/.iii<j^ 
armed  rehellion  atjainst  the  I'nited  States;  with  joining  in  a  ■  on- 
.-iliiraey  to  ojijiose  liv  force  the  authority  of  tlii!  (iovernmeiii  of  the 
I'liitcd  Slates:  with  a  refusal  to  hold  court  :  and  with  unlawfully 
arliiuras  jiidffe  of  tlie  Confechirate  Disliiet  Court,  in  wliieh  eharire 
tlieie  were  thriH'  specifientions  of  unlawful  arrest,  iniprisoiiment 

the 


mi   roiiliscatioii. 
It  1 


•lud-e  I! 
1  h 


Uiuphreys  was  served   hy  leavin 


]inM'css  at  his  house  and  fiy  piiolication 


II 


c  made  no  app 


mil  was   tried    in   his  aliseiiee.  in  the  same   luanner  as  if  a  ]ih  a  of 
Mill  oiiiltyhad  heeii  entered.      AinoncTst  othei  witnesses  in  support 


.1  tl 


le  iin|ieaeliment  were 


.\ndi 


.(■ih 


iiison.  who  was  suiisciiiieiitiv 


I'lu'il  when  President  of  the  I'liited  States. and  tl 


Mr 


rowidow.  aiterwai'ds  efovernor  ol    I  eunessei 


T 


.1' 


W.iseou 


vieted  on  all  the  eliartjfes  (>xcr]it  the  specification  conccrninL;- 


iK'.'iliisI    him    fiir    Hi^h    Xtisilc 


li 


iifiiiiors  iiiiilllc 


iiiHi;('sli.(l  liv  11  siiiiiliir  slaliile  pas-i'd 


Hv  ..Villiiir.I.  SiiiM. 


ill  I'eiiii^vh 


lifter  the  iii'i|iiill.".l  ol' 


liiil'.v,  Ildsioii.     riil>li-^h''i|  liv  Ililliiiril,       the  jmljii's  who  were   iiii|ii'Ucli('cl   fur 


Oriiy  ,\  Co.,  is;t:i.  pp.  niri. 

■-  Art  (if  Miin'h  2,  l.s;tl.    1  Si.  ill  L. 


tlie  iiiiprisdnnipiit  of  I'lissiiiore.     Sei- 
Appeiiilix  to  this  volu  IMC.   Si  in  i  In  r  sliil- 


p.4^7;  t!.  S .  Hov.  St.,  §725;  Fiwter's       uli's  linve  lipen  pusseil  in  iiiaiiy  ot  Ihi 

Pt'il'iiil  I'rnctlee,  §  "i  i.     This  sliiliile      dilTi'i t  States. 

Wuh  introduced  by  Buehiiuiiii.  iiud  wiis 


346 


IMPKACH.MEN'TS. 


[cifAP.  XII 


tho  arrests  and  confiscation;  siMitunccd  to  rumoval  and  (li.s(jii;iliti- 
(•ation  to  liold  any  ollict.'.-' 

'I'lif  iiiipcai'linicnt  trial  of  I'PL'sidcnt  Jolmson  is  tlie  most  ro- 
markal)lc  event  in  tlu^  annals  of  jurisj)rudence.  Never  l)i>f(irt', 
had  an  attempt  been  made  to  remove  tlie  eliief  exeentive  of  a 
nation  nnder  the  forms  of  law.      Despotism   tempered  ]iy  assassi- 


liad 


jirevailed    in    many   countries. 


In    Knirland  ami 


iiatinn 

i'^rance.  kimj's  liad  iiccn  triven  tlie  form  of  a  trial  before  the 


ir  <'X('- 


eulion  :  but  in  eaeli  ease  the  triliuiia 


I  \vh 


iH-li  i)i(inounee( 


I  th^ 


hiel 


1  (!on(l(iiiii 


ilcmnalidii  hud  no  fonndatiou  in  law  imr  jurisdiction  over  the  ac 
enseil,  and  the  pi'oceedinL;>  wei-e  as  irrei^ular  and  as  des'ilute  e 
legal  sanction  as  tiiose  before  the  lynch  couils  \v 
catlli'-tliievcs  in  <iui-  frontier  States.  Tlicn.  for  the  llrst  time,  ih'l 
a  court  of  justice  with  full  jurisdiction  determine  whether  ihc 
chief  executive   numistrate  of  a   nation    had   committed  such  nf- 


fi 


I'uses  as  just i  lit 


d   1 


us    remova 


1    fi 


■om    olliei 


Hi 


And  altlh 


:h  th, 


accused   was    obnoxious   to    a    larL;'e    majoritv  of    the    ]ico[ 
tribunal   over  which  the  ( 'hief-.Iustiee  of  the   I  nited  State 


lie.  Ih.' 


sKli'il  paid  <liie  rcs|ie( 


|)i-occediiiLrs    tree    Irom    all    iiiilairiK 


■t  to  tl 
11 


le  solcmni 


tv  of   the 


occasion,  kc])t  tlie 


and    irretrularilv.  aud    ll.i' 


I' 


resident  was  aecjnitted  liy  the  votes  oi   men  w 


th 


,ith  1 


lo  svmiiailiv 


for  liis  feidini^'s,  his  jiolitical  tenets,  or  his  personal  eharacti 


Tl 


le  assassinai  loii  o 


f    I. 


incolii   ( 


lis[)lay('(l  for  the  third  ti 


we 


;ikncss  of   that    [lait   of    the   ( 'oiistitution   which  it'i^-ulatcs  tin 


succession 


to  thi 


iresiiteiicN'. 


Jol 


iii.son,  a  man  ol   cumisl' 


been  nominateil  wi 


habits  and  defective  education, 
mark  of  sympathy  with  tiic  Southern  loyalist;- 

tl 


th  1 


inn  ;is  a 


{•"ormerlv  a  1  )cni- 


it  with  slroiiLf  \'ii'ws  on  the  subject  of  State  riL^'iit.s,  it  was  cailv 


lois  111  till 


th 


nlltll 


itnral  that  he  slionld  sympathize  with  his  iieiqhl 
id   lack   hai-mouy  with   the   measurfs  adopted   iiy  the   victorieiis 

ii!  governiiiuiil 


North  for  the  reconstruction  of  the  I'nioii  arid  tl 


the  Stal( 


at 


d  r 


lail  loi'iiUM 


th 


ith 


Confederaev.      Soon  afi 


his  acecs-iioii  to  power,  he  <'olli(k'd  with  lioth  Ilotisi'S  of  ( 'ontjri'ss ; 


th 


ll.se    o 


f    tl 


powers  ot    a[)p( 


intmont,  nard 


o',\  anil 


vclo. 


his  best  lo  strcllethcn  h 


;sitlon. 


Two-thirds  of  hi 


-^  Tiiiil  iif  .Fuilf^c  Huiiiphii'ys,  Coii- 
^;^'ssi(>n:ll  (ilnlir,  2cl  Session,  37lli 
CongrcBB,  Pari  IV,  pp.  2942-2953. 


'-*  Sc'  Kupra,  §  38. 


S  00. 


.lOIINSONS    IMPEACHMENT. 


547 


)f  ('oiiLrn'ss  onactcil  lii 


iil'kT 


■r  I 


lis   veto. 


it 


i('(l  fis  if  liis  teiiuru  of  ollice  (Impended  upon  tliei 


On  .liiniiiiiy  7tli,  18(!7,  Jiuncs  M.  Asliluy  of  Oliio  siihniitted  the 
llowiiiiif  piT;iinl)l('  aiid  resolution,  \\lii<di  wore  piissucl  by  a  large 


Ill;l]()nt\ 


t\  of  tliu  Ilouso 


M 


uprt'suntutiVL's ; 


I  ilip  iiiipcMch  Aiidipw  .Toliiison,  N'ico-I'ri'sidi'iit  and  aclinsj;  I'rcsident 


.1  tl 


I  aitL'd  States,  of  liiLiii  crimes  aiul  iiiisdemeaiKi 


1 


fliaiL'e  hnn 


with  a  Dsmpalion  of  poncr  and  violation  of  law:  In  lliat  lie  lias  coi- 
niplly  used  t!io  appciintinji'  jiower;  in  tliat  lie  lias  ecirnip'Iv  used  the 
pnrdoriiii'^  ]iower;   in  that  lie  li:is  corniplly  nsid  the  veto  jiower;   in  that 


hi'  iia.-;  eornuillv  di 


of 


pillule  jiropiTty  ol    the   I  iiiled   Sl;iles;    iii 


lh;it  lie  lias  eorrnplly  iuteit'ered   in  elections,  and  coiiiniitted  acts  and 


('(inspired  with  others  tooniniit  aets,   which,  in  conteni 
('onstitiitioii,  are  liij;h  ci'iiiieb  and  niisdeineaiioi's. 


piati 


jf  thi 


I'lie !•)'!■  ire,  hr  it  ivaiilrt'  I,  'I'jiat  tiie  ('(iiiiniiUee 


the  .1 


ndieiarv  In 


mid  tliev  ar>  lierehv,  aiithoriz(!(',  to  ininiire  into  the  ollieial  coiidiict   of 


And 


I'ew  .'oliiison 


-I'r. 


it  of  the  tinted  (States,  discha 


I'^niiT  the 


juiuers  and  dntii'sof  the  ollice  of  I'resitleiit  of  the  I'nited  States,  and  to 
n  |i(nl  to  this  House  wheiher,  in  their  opinion,  the  said  Andrew  .loiiiison, 
v.iiih'  in  said  olllce,  has  lieen  sinilly  of  acts  which  were  desisziied  orc:ih'ii- 
l:;lr.l  to  oveitlirow,  subvert,  or  corrupt  the  (iovermnent  of  the  Inited 
States,  or  any  department  or  oHicerthereol' ;  ami  whether  the  said  .Vndrew 
.lohnson  has  been  ijniity  of  any  act,  or  has  coiis|)ired  with  others  to  do 
acts,  wliich,  in  contemplation  of  the  Consiitutiini,  are  IiiLili  crimes  or 
s,  re(piirin<;  the  interposition  of  the  coiistilntional  powi  is 


iiiis(i(nneaiior 
1)1'  this  House  ; 


d  Unit, 


sal 


1  <'Oinniitlee  I 


lave 


power  to  si'iid  for  pi 


I  jiapers  and  to  administer  the  customary  oath  to  witnesses. " 

A   niontli  later,  tiie   {'oinniittec   dii   the   ,Iiidici,iiy  icpoiied    that 


■V  had  exiMiiiiicd   a  laitrc  iiuinlu'r  of  w  itiic.- 


d   (1 


ociini.  n;s. 


I  not  haviiii,r  coniple 
di 


ted  ilie  invcstiij'ation. 


di'eini'd  it  inexpediiiit 


.■I  slilmiit  any  (■oiicliision  hcyoiid  tiie  staleliieiil,  that  siiriicieiit   ti'S 
tiiuoiiv  iiad  lic'c'i  hidU'^ht  to  its  notice  to   justify  and  adiiiil   a   fiii 


llier  prosecution  of  the  iuvcstioation 


(»n  .Maivh   Ith  of  ih. 


new  ( 'ongrcss  assi'inhlfd.      On  ilic  motion   of   .Mr.  .As'ili 


H 


o:ise 


lived  tliat  the  Judiciar\  Coniniittcc  wli 


udd    continue   the   iiivcstitratum   aiithonzci 


th 


Vein 


ed  (liiriui;-  the  last   session  of  (he  loinicr  (oiiorc. 
her,  lliu  rcjiorts  of  the  Coniniittcc  \\crc  ]n'eseiitcd.      T 


'11  appointed 
e  resolution 
'ss.      In    No- 


jority  reported  a  resolution  tlireetiii};'  the  inipi'atliinent  of  President. 


548 


nirHACHMr.xTS. 


[flFAP.  xiir. 


.Idliiisoii  l)i'c;ui-<('  iif  liis  failui-i'  to  cull  ii  special  session  of  Coiilj'ivss 
oil  the  liiial  siu'rciidcr  of  the  ( 'oiifedeiate  forces,  liis  ivts  in 
I'ccogiiiziiisf  without  st;itiitoiy  authoiity  the  govcrmiients  in  ijir 
States  which  hail  licen  the  seat  of  tlu^  riihellioii.  his  pwhlii  .--uli- 
staiitial  denial  of  the  right  of  Congress  to  ]ii-oviile  for  th<'  itridii- 
.strnction,  his  abuse  of  the  powers  of  veto,  aip^iointnicnt,  rriM(i\ii!, 
and  pardon,  his  atteni])ts  to  jiivvent  the  ratilication  of  the  Four- 
lecntli  Anicndnicnt.  hi>  [inlilic  slat/nients  en, •Muraging  resistance 
to  the  schenii;  of  iiecDnslruction  dirocU'il  hv  Congress,  his  (lis])()- 
sition  of  captnreil  railroads  and  other  pr(>[)erly.  and  his  iis(>  of  the 
iuniy  tf>  disperse  a  lawful  asseinlily  of  cili/eir:  in   ivouisiana. 

A  minority,  which  was  composed  of  ixepulilieans  as  well  as 
Democrats,  submitted  two  reports  with  a  resolution  dii-ecting  that 
the  committee  Ix;  diseliargeil  from  further  consideration  of  the 
proposed  impeachment,  and  that  tlu;  subject  b:'  laid  upon  the  taiile. 
The  pro|iosed  iinpeaelnne)it  was  voted  down  by  a  largi;  ma joiity .'•'■'' 
The  proceedings  had  a(tcom]ilished  foi'  tlu;  tinu;  tlieir  object  —  tiie 
iutiniidalion  of  the  I'resident  into  the  I'xeculion  of  tlu?  Ki^constnu- 
lion  acts  which  hi'  considered  unconstitutional. 

Ab'anwhile  a  bitter  (piarrel  was  bi'cwing  between  .bihnsoii  ami 
Stanton,  who  was  tlien  Secretary  of  War,  holding  over  since  \An- 
coin's  administration.  A  year  before.  Congress  had  passc<l  over 
the  veto  .)f  the  I'resident  the  Tennie  of  Olliee  Act.  This  placid 
a  restraint  upon  the  removal  of  ollieers  by  the  I\\ecutive.  which, 
in  the  opinion  of  many  of  th<'  best  lawyers,  was  unconstitu- 
tional.^''' 

Willi  an  e\  ideiit  \  to  an  im)iea(dHnent  in  cas(>  of  disobedience 
to  the  act,  a  >eeUon  had  been  added,  makiu'.;  such  disoliedienn'  ;i 
iiigii  misilenieanor.     'I'he  act  provi(h'd, 

" 'I'liiit  every  iiersoii  holding  any  civil  olliee  to  Mliieli  lie  liiis  lircii  up- 
pointed  I'V  and  uilh  the  udvioc  ninl  ennsent  of  the  Semite  ami  every 
person  who  shall   hereiiflei-  1..    :ippoiii'.'d  to    oiv  such  olliee,  anil  sliiill 

-■'' Mil'lierBOii.    HIhIdi-v  of   tlio    Hn-  liiiili^e,  tiotli  of  wlioiii  wim'k   Iti  |m|Ii|| 

icinsli'iieti".!,     pp.     187-l!lll;     Uliilin',  runs,  eoliniliis  an   iililo   iIIhi'IIhhIiiii  iif 

Twenty    Ye>irs   111    {'nntrn'^H.    \ol.    II,  thn  si||ijt«et  <>f  Imi'eiielininnl.     iS'ii/ilii. 

pp.    :Ui>;)17;    HoiiHo   ».-|ioi(h,    idtli  j|  :i!t 

I'i'liK.,    1st    ScsHlon.    No.    T,    Nov.    2.'),  *  This    siilijeet    will    Iio    i|iscu-^<eil 

1HI17.  Tilt'  minonty  rnport  of  .Tiiiiips  snlisciiuenlly  iiii'lnr  tlie  Kxeeiillvn 
F.    Wilsini   ami   KrediMicU   K.    W.ioil-      I'owiir. 


,;  &    k 


?  •"'•] 


TKNTliK    OI''    <)rKI(;K    ACT. 


649 


lii'coiuo  duly  quiiliru'd  to  net  lliiTcin,  is,  jincl  slmll  lie,  piilitlid  to  l;olil 
-iidi  (illico  until  ii  siicccssor  hIiiiII  iiiivc  1)im'Ii  in  like  iii.uiiior  iippoiiili'd 
1111(1  <luly  (I'.iiilirn'il,  cxcrpt  MS  lii'ri'in  othi'i'wisf  proviilcd  :  I'l-ovidod,  'I'liat 
ihi'  SicTi'lMiits  of  St;ite,  of  tiic  'I'rcasiiry,  ol'  \\':ir.  of  the  Navy,  and  of 
till'  Jiiti'i'ior,  till!  I'ostniaHtcf  (ieiifial  aud  the  Atloiney-fieneral  shall 
hold  their  otilees  respe(;tively  for  and  diirinji  the  term  of  the  President 
liy  whom  they  may  have  been  appointed,  and  for  one  month  thereafter, 
iriilijeet  to  removal  by  and  with  the  adviee  and  consent  of  the  Senate." 

"  That  when  any  odieer  apiiointed  an  aforesaid,  excepting  judges  of 
the  I'nited  Slates  courts,  shall,  during  the  reeess  of  the  .Senate,  bu 
shown,  by  cvidenee  satisfactory  to  the  President,  to  be  guilty  of  inis- 
I'oiiiluct  in  olllee,  or  crime,  or  for  any  reason  shidl  become  incai)alile  or 
legally  dis(|ualilied  to  perform  its  duties,  in  such  ease,  and  in  no  other, 
the  i'resident  may  suspend  such  ollicer,  and  designate  some  suitable 
|ii'ison  to  perform  temporarily  the  duties  of  such  ollice  until  the  next 
meeting  of  the  Senate,  and  until  the  case  shall  lie  acted  upon  by  the 
Senate;  and  such  person,  so  designated,  shall  take  the  oatlis  and  give 
till'  ImiihIs  re(|uired  by  law  to  be  taken  and  given  by  the  person  duly 
:ipp(iinte(l  to  liU  such  ollice;  aud  in  such  C'ase  it  shall  be  the  duty  of  the 
President,  witliin  twenty  ilays  after  the  lirsl  day  of  such  next  meeting  of 
the  Senate,  to  report  to  the  Senate  such  suspension,  with  the  evidence 
and  reasons  for  his  action  in  the  case  and  the  name  of  thi^  [jerson  so  des- 
ignated to  perform  the  ibities  of  such  ollice.  .Vnd  if  the  Senate  shall 
concur  in  such  suspension,  and  advise  aud  consent  to  the  removal  of 
such  ollicer,  they  shall  so  certify  to  the  President,  who  may  tliereupou 
remove  such  ollicer,  and,  by  and  with  the  .'nlvice  aud  consent  of  the 
SiMiate,  aiipoint  another  person  t(j  such  ollice.  ISut  if  t!u'  Senate  sludl 
ri'fiise  to  concur  in  such  suspension,  such  ollicer  so  suspended  shall 
fiMtliwiih  resuiue  the  functions  of  his  ollice,  and  the  poweis  of  tlu'  per- 
son so  jurforming  its  duties  in  his  stead  shall  ciase,  aud  the  ollicial 
salary  and  euiohnnents  of  such  ollicer  shall,  during  such  suspi'usion, 
heliuei  to  the  person  !•»>  Jierformii\g  the  duties  thereof,  and  not  to  the 
ollicer  sii  HU!»|\e\t\|od  ;  Provided,  lu>wever.  that  the  President,  in  <'ase  he 
hiiiill  lucvime  satislled  that  such  suspension  was  maile  oi;  insulllcieut 
Uroultds,  shall  bo  authorized,  at  any  time  before  repoiting  such  siispen- 
siin  to  the  Senate  as  above  providid.  to  revoke  such  suspension  ami 
'linstato  such  ollicer  in  the  performance  of  the  tluties  of  his  ollice." 

"That  the  President  shall  have  power  to  till  all  '  leuncies  which  may 
happen  during  the  recess  of  the  Senate,  by  reason  of  death  or  resigna- 
lioii,  by  granting  coniinis.sions  which  mIi.iII  expire  at  the  end  of  their 
next  session  thereafter.      Aud  if  no  ap[iointnient,  by  and  with  the  ad- 


550 


IMPKACIlMKNTa. 


[CIIAI-.  Ml 


■vice  iiiiil  pouscnt  of  the  Sciuito,  nl..'ill  Im  iiiiidii  to  such  ollice  ho  vaciuit 
or  ti'inponii'il y  fiMi'd  na  iiforosiiid  diirini;  sucli  next  HcHsion  of  tlu-  ScikUo, 
such  ollico  sh;\ll  rt'inniii  in  .ahoyMiin'  wilhoiit  iuiy  Hid;iry,  fees,  or  ciiii>lii- 
mciits  !itt;ic!it<]  thcicto,  until  tlic  siunc  sh;ill  be  filled  by  !ip|)oiiitMH'Mt 
thoii'io,  by  mid  with  the  ndvic(!  iiiid  conseul  of  tho  Soniitu ;  nnd  duriiii; 

bitics  licliiiiiiinc;  to  such  olIi<'('  shMJi  he 
iiw  exercise  such  powers  iiml 


dl  tl 


ic  powers  ;hiiI  ( 


such  tin 

cxei'cised  by  such  other  ollicer  as  iii.'iy 

<luties  iu  c;ise  of  !i  vacai 


icv  ill  such  oilice 


As  lii'st  introdiici'd  iuk]  jiiis.scd  in  the  ScikiIc,  the  bill  expressly 


excepted  ( 


.ibiiiel  oil 


ieeis  from  its  operation,  iuh 


1  ail  aiiK'iidiiieiit  to 
ueh  an  anieii(liiieiit 


include  tliein  was  voted  down.  In  tlio  House  s 
was  ailnpted  iiftisr  eonsiderable  disiiussion.-''  'I'lie  Senate  refused 
by  a  larjjfe  majority  to  eoiicur  in  it.  I'lioii  a  coiil'en'Uci'  a  siil)- 
stitiile  was  adopted  deelariuLf  that  the  members  of  the  eabiiiet 


ill 


lold   their   olliee   respect iveiy   for  uii 


id  duriuL'  the  term  of  tin 


President  by  whom  thej-  iniiy  have  been  appointed,  and  for  one  iiioiitli 
thereafter  sulijecl  to  removal  by  and  with  the  advice  and  consent  of 
the  Senate." 


In  th 


irse  of  the  debate.  Senator  Sliermaii,  who  \va;  a  nieiu- 


lier  of  tlu!  conference  commit  ice,  s,ii( 


1:  — 


"We  provide  that  a  cabinet  minister  shall  hold  his  olllce,  not  for  a 
fixe(l  lerni,  not  until  the  Senate  shall  coiiS(Mit  to  his  removal,  but  as  loiij,' 
as  til' 


'.J»»Ui     till 


ap|)oints  him  holds  the  olliee. 


After  the  j)assatj(>  of  tli 


ill,  it 


was  claimed,  liow( 


ver,  bv  Staii- 


ind  1 
let  oil 
after 


MS   SUppll 


th 


irters,  that  .lohiisoii  had  no  jiower  to  remove  the 

•t  irv  of  War,  who  wen;  holding 

1  bad  not  ht^eii  vea])i)oiiit(Ml.    On 


iceis.  llieludiiiLi 


tlr 


itliof  I. 


iiieoln,  aiM 


Ai!'riistr)ili,  ISdT,  the  i' 


•ut  wrote  to  Stanton  :  — 


V  tllllt 


"  I'liblic  considerations  of  a  hii;li  character  constrain  nie  to  sa 
j'our  resii^natiou  as  Secretary  of  War  will  be  aeeepteib" 

Mr.  Stanton   replied  immediately  aeknowledjjfinjT  tiie  receipt  of 
tlic  letter  and  addinjj  :  — 

"  I  have  the  honor  to  say  that  public  considerations  of  a  high  cliiir- 


=■  14  St.  at  L.,  11.  ■l:in. 
-"  I?laiM(>,    Twrrily    Years   in    Ciin- 
grcKj;,  vol.  11,  pp.  2l)9-27'l. 


ll.id.,  pp.  3')3~3r)6. 


s  no, 


] 


BIPRACH.MKNTS. 


actPi'  wliicli  alono  have  iniluced  iiie  to  contimio  lit  tlie  heiul  of  this  Dc- 
IiMittiu'iit,  coiisti'.aii)  me  not  to  n'si<;n  the  Spcrclni'yHliip  of  Wiir  ln^forn 
the  next  iiieetin<^  of  C'oiijjft'Kw." 

Oil  Ausfiist  12tli,  1M(!7,  Juliiisdii  siisiii'iiildd  Siaiituii   IVoiii   his 


(illicc  11 


iidcrtlio  'IViutrc  of  Ollicc  Ad,  mid 


)illt"d  (icllclMl  (  JfMIlt 


scci\'t;iry  of  war  (nl  iiitcriiii.      Stanton   rciiliiMi  ilriiyinL;'  the  I'li 


iliiit's  ri^dit  to  siis|ii'iid  liiin  \v 

Srna 


itlioiit  tlu;  advice  and  coiisciit  of  the 


tr.  ami  willioiit  li'^'al  cause:  — 

'■  liTit  inasimic'h  as  the  frenernl  coiriiiiarnliMi;  tiic  aniiics  of  t!ie  I'liiti'd 
.Ni.ilt's  has  hcen  a|)i)oirit('il  ml  iiilirim  and  has  notilicd  me  that  he  has 
lici-epli'd  the  appoinliiK'iit,  I   liave  no  alternative   hiil    lo  siihiiiit   iiiiiler 


(ilist  to  sui)erior  force." 
When  (lie  Senate  met  in 


I), 


ilief,  the  I'i'esi(h'id  iiotilied  it  of 


tlie  siisiieiisioii,  witli  Ids  reasons.      The   Senate  rel'used  to  cone 


ur 


111    liie 


lame.      'rhereuiion.  (ieiier;!!  (irant  at  once  siirrenih'red  tlie 


War  Di'uaitineiit  to  Stanton.     Tiie  I'resideiit  i 


d( 


lant 


hail 


I'ailh  ill  this  : 


d  clainu'd.  wiiat  (iraiit  deiiieii,  tliat  he  had  nri 


{iroiii- 


i<cd  to  hold  the  olliee  and  thus  aid  in  liriiiij'iiiL;'  the  ea--e  liel'ore  tl 


le 


■>ii|ireiiie 


Coiiilor  the  I'nited   States  for  deieiniimition.''' 


()u  Fuliruarv  21.st,  l.Sl!8,  the  J'rcsiduiit  wrote  the  following  let- 
tci-s,  which  were  the  immediate  cause  of  his  imjieaehmeiit:  — • 

"  KxKcuTivK  Mansion, 
Washington,  D.C,  Keliniaiv  :.M .  1808. 
Siii ;    l?y  virtue  of  the  power  and  authority  vested  in  nie  as  President 


the  ('(institution  and  laws  of  the  I'liited  .State 


s.  von   are  Mereliv  re- 


iihiveil  from  olliee  as  Secretaiy  of  the  l)e|iarliiiciil  of  War,  and  voiii' 
''iiiictiiais  as  sucji  will  terminate  n|ion  receipt  of  this  comnMuucatioii. 
Vnii  will  transfer  to  IJrevet  Major  (ieneral  Lorenzo  Tlionias,  Adjutant 
•  ieiieral  of  the  army,  who  has  this  day  heeii  authorized  and  emimwered 
til  act  as  Secretary  of  War  "(/  iiiti'rhii.  all  records,  hooks,  [lapers,  and 
oilier  piihlic  property  now  in  your  custody  and  charsie. 


Kespecl  fully 


Andki'.w  .Johnson. 


(Ion.  K.  M.  Stant 
Washiniiton,  D.C 


"  Exi'.ffTivK  AIansion, 


Wasiiin<;ton,  D.C,  !■'< 
Isik:   Hon.  Kihvin  M.  .Stanton   haviirj;   heeii   this 


riiary  •_>!.  ISnS. 
av  removed  from 


'  Blaine,  Tv.only  Vi'iirs  ill  Coiifiress,  vel.  ii,  jui.  y4H-3ijl. 


I.Mn:.\(ll.MKNTS. 


[CIIAI-.  Mil. 


olllci'  ;is  Si't'ictiuy  for  tin'  I)i'i)iiitiiiont  of  War,  you  nro  lii'iihy  iiiillioiizid 
:iiicl  I'liipowiTC'tl  lo  act  an  Sccivtary  of  War  ail  iiilvriiit,  and  will  iiniiu- 
tllalt'ly  enter  n;)oii  the  (lls('iiaijj;e  of  the  duties  iierlidniiifl  to  tiiut  (illicit 
Mr.  Stanton  has  been  instrneti'd  to  transfer  to  yon  all  the  reeonls, 
books,  jjaiii'r.s  and  otiier  public  property  now  in  liis  cnstoily  and  charge. 

KespectfuUy  yours, 


Anduew  Johnson. 


lirevet  .Major  (Jeneral   I.,oi!i;n/o  'riK)MAS, 

Adjutant  (ii'Ueral,  I'niled  Slates  Army, 

Washiiinlou,  D.C." 

Till!  I'lesident  informed  the  Sunate  of  1 


lis  net  loll  tijioii  tlio  same 


Stiiiitoii  refused  to  surrender  liis  oilicu  to  (iein'nil  Tli 


oiiias, 


lay. 

k'ho  (leniaiided  possession  iuhI  leiiiaiiied  in  eontrol  of  tlie  Depait- 

ueiit.      'I'lie  Semite  fortliwitii  ]iassed  a  lesoliitioii  declaiiiiif, — 


'that  iiiuler  the  Coiistiliition  and 


)f  the  I'liiled  Stales,  the  Presi- 


dent has  no  i>o\ver  lo  reiiiov(!  the  Seeri'larv  of  War,  or  to  desijinale  any 
other  ollieer  lo  iierforni  the  duties  of  that  olllee  nd  iiili'n'iii." 

On  tlie  same  day  a  resoliiti(ui  for  the  imjieaclimeiit  of  tlie  l'ie>i- 
de'iit  was  iiitrodueed  in  liie  House  of  lit'pi'osentiltives  and  relViiiil 
to  the  Committee  on  iieeonstriietioii.  T\w.  next  moniiiii;'  'riionia-; 
was  arrested  liefore  lireaicfast  liy  the;  iiiarslial  of  the  <lisliiet  iiiiilera 
warrant  issued  liy  the  ("hiof-Justice  of  the  Distiiel  Supreme  Com  I. 
upon  an  allidavit  l>y  St  niton,  ehai'niiio'  a  viohitioii  of  the  Tenure  of 
Oniee  Act.  A  writ  f)f  habeas  corpus  was  immediately  issued  1  y 
tlic  same  .iudn'c  *'■  it  n'rante<i  the  warrant,  and  tipmi  its  nluin 
tliat  day  'rh(Uiias  was  (hseliarged  from  custoih'  upon  jjfiviiij^'  live 
tlKUisand  (h)lhirs  bai!.'" 

Meanwliile  tlie  ('(uuinittee  (Ui  lieeonstruelion  rejjoited  to  the 
House  a  I  eroiumen(hitiou  that  J<ihnsoii  be  iiupeaehed.  'I'jie  debate 
oecu]iied  tiic  iiiitirc  day  until  the  iidjounimenl  of  the  House  In 
I'"el)ruary  •24tli,  the  iiiterveiiintr  day  bein!:^'  Sunday.  On  ^loud;iy, 
l'"ebriiary  ■J4th,  ISll.S,  a  resolution  bir  tlie  impeaehmeiit  of  Presi- 
dent .lohnson    passeil    the    House    of     iiepreseiilatives   by   a  strict 

f   tlie  House 


owmu'  inemiiers  o 


party  vote  of  12ij  to  47.     The   foil 

were  elected  iiuDiajrcrs  of  the   imjieacbment :  .lohii  .\.  liinghain, 


Johnson's  Inijieachaient  Triiil,  vol.  i,  ■127-'li),  Oifj-oIT. 


!I0.] 


AKTICI.KS    ACIAINST    .HHINSON. 


5o3 


(ifllllfO    S.    Houtwidl,    .lollll    I''.   W'il 


SUM.    liclllillUIII 


V.  Miitlcr,  .loliii 


A. 


.DLCilll    1111(1 


'I'l 


ladilciis  Mi'Vuiis 


Till'  iiiticlcs   (if  iiiiiiciicliint'iil  were    eleven   in   niiiiil)er.      Tliey 


(1  ill  eiirlll  (lil'l'erellt  iirtieles.  wliieli  stilted    (i 


iiiiiii;  fuels  ill 


(lilVerelil    leu-.il    fiiiiii,  till'   atleliijiti'il   rciiidvid   of  Slalitoli   ill 


lip- 


|>iiilltlllellt  (il 


riidiiuis  lis  1)  violation  (if  tlie  'reiiiin?  (if  ( )lliee  Act,  and 


"All  lilt  t(i  drtine  and  [iiiiiisli  ei  rliiin  ennsjiii'acics,  apjiroved  'Inly 
;:i.  ISIil."  'I'lie  iiiiilli  iiitiele  eliin;<,fe(l  tliat  (in  Fehniaiy  iJlid,  iNtiH, 
ilie  I'lcsideiil  liroii^dit  liefoi't-  liimself,  William  II.  iMiiery,  a  (ieiii^ral 
(if  the  Army  in  (•(iiiiiiiand  lit  tlie  di'iiiU'tmeiit  at  Wasliinfftdii,  and 
iij>ti  III 
iii^lnietiiins  in  relation  to  militarv  oiieralioiis  issued   liv  llie  I'i'us 


led  liiln  that   the  act.  wiiieli  [ildvided   tlial    "all   orders   iind 


■lit  or  Seeietary 


y 


)f  w 


ir.  sliii 


U 


lie  issued 


thr 


(lllLlll 


y 

the  (i 


d  of 


riiiv,  a 


11(1 


111  ease  ol   his  iiiii 


diilitv  tlirouuli  his  next  ill  iiiiil 


the  A 

was  uiieonstitiilional ;  with  intent  tliereliy  to  induce  ICmeiy  in  liis 
(illicial  caiiaeity  us  the  coiiiiiiiinder  of  the  de|iartinent  at  Wasliinjf- 
tiiii.  to  violate  tiie  [irovisions  of  tiic  said  act  and  to  take  and 
receive,  act  upon  and  obey  suih  onlers  as  he  I  he  said  Aiuirew  .lolin- 
soii  min'lit  make  and  ^dve,  and  which  should  not  lie  issne(l  thr  'Ugii 
the  (ieiieral  of  tlie  aniiy  of  the  I'niteil  Stales,  aeeordiiij,'  to  the 
|iro\isioiis  of  said  act.  and  with  th/  fiii'thcr  intent  thcieliy  to 
ciiahle  the  I'lvsident   to    jireveiit   the   execution   of   the  Teiiure  of 


1  IHice  Act  and  to  uiilawf 


ully  |i 


reveiit  Stuntoii   from  coiitinniiiL;'  tii 


liiild  tlii^  (illice  of  Secretarv  of  W 


Thai   said    Andrew  .!( 


111.  I'll 


.'lit    of   tllf  riiite(l    Suites,    iiii- 


iiiiiiilfill  of  the  iiiuli  duties  of  his  (jllice,  and  the  diiiiiily  and  |iroprietics 
llu'icof,  and  of  the  lianiuiiiy  and  cdin'tcsics  wiiieli  (iiiulit  to  exist  and 
lie  iiiaiillaiiu'd  lietweeii  the  executive  and  Iciiislativi'  liraiiciies  of  tln^ 
j.'iiverniiieiit  of  tl  ■  riiiled  Slates,  dcsiniiinu  and  iiiteiidiii;;  to  set  aside 
the  riLllitfiil  au'liorii  >  :inil  jHiwers  of  ( '(iii;j;iess,  did  atteiiilit  to  liriug 
iiili)  disirraee.  idit'iiii',  hiitivd,  eonteiiii)!.  and  ri'imiaeli  llie  ( 'oiijiivss  of 


the 


r 


lilted    Sta; 


(li'strov  die   rciiaii 


aii'>  the  several  laaiiches  llien-df.  to  iiii|iair  and 
ara;  n  peel  of  all  Ihc  picid  people  (if  the  I'liited 
Slates  for  tile  Coiitiii-ss  and  li'iiislative  pdwers  tliercdf.  (wliieli  all  otli- 
t'l'iH   of  the   iiovcniiiieiit    oiielit   inviolalily  to   preserve  and  iiiaiiitaiii), 


mill  to  excite  the  oiliiilli  and  leseillliieiil    iit'   all    tin 


mm    iieiip 


le   ;-f   the 


■  Bill 


'I'l 


rciii's   ill   Oin- 


Snpra.  §  IIH.  over  uiite  95. 


uivss,  vet.  il,  pp.  a."i(i  :ii';i. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


^4l 


^<K^^ 


1.0 


I.I 


11.25 


Li  128     |2.5 

^  u^  lilM 


12.2 


t"     — 


U    ill  1.6 


1 


v] 


<^ 


/2 


^. 


/: 


y 


/^ 


^  •  ♦ 


PhotDgrapnlG 

Sciences 
Corporation 


33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


.5t'. 


^v 


6^ 


fiOi 


IMl'KACHMENTS. 


[chap.  Xlll. 


riiiloil  States  ajiuinst  Coiigivss  anil  tlio  laws  by  it  duly  and  consiitu- 
tioiially  o:i:i(.'totl ;  and  in  pursuance  of  his  said  design  and  inli'iit, 
opiMiiy  and  piil)liuly,  and  before  divers  asseniblaj^cs  of  tlie  citizen^:  of 
tile  I'nited  States,  CDUvened  in  divers  parts  tliereof  to  meet  and  rcei>ive 
said  Andrew  .lolinson  as  tlie  (  hief  Magistrate  of  tlie  United  St:ites, 
did,  on  tlie  cigliteeiitli  day  of  August,  in  tlie  year  of  our  I-ord  one  thou- 
sand ojirhl  liiindred  and  sixty-sis,  and  on  divers  other  days  and  times, 
as  well  before  as  afterward,  make  nud  deliver,  with  a  loud  voiee,  <'i'i- 
ttiin  intemperate,  inllammatory,  and  scandalous  harangues,  and  liiil 
therein  utter  loud  threats  and  bitter  menaces,  as  well  against  Congress 
as  the  laws  of  the  I'nited  States,  duly  enacted  thereby,  amid  the  ciies, 
jeers,  and  laughter  of  the  multitudes  then  assembled  and  in  hearing, 
wliieh  are  set  fortii  in  the  several  specifications  hereinafter  written,  iu 
substance  and  effect,  that  is  to  say : 

'■''  ^jiecijication  Fimt.  —  In  this,  that  at  Washington,  in  the  IJistrict 
of  Columbia,  in  the  Kxeeutive  Mansion,  to  a  committee  of  citizens  wlio 
called  upon  the  President  of  the  I'nited  States,  speaking  of  and  con- 
cerning the  Congress  of  the  I'nited  States,  said  Andrew  Johnson,  Pres- 
ident of  the  United  States,  heretofore,  to  wit,  on  the  eighteenth  day  of 
August,  in  the  year  of  our  1-ord  one  thousand  eight  hundred  and  sixty- 
six,  did,  in  a  loud  voice,  declare,  in  substance  and  effect,  among  other 
things,  that  is  to  say: 

"  '  So  far  as  the  executive  department  of  the  government  is  con- 
cerned, file  eO'ort  has  been  made  to  restore  tiie  Union,  to  heal  the 
breach,  to  pour  oil  into  the  wounds  which  were  consequent  u])(>ii  tlie 
slriiggU^,  and  (to  speak  in  common  jihrase)  to  jircpare,  as  the  learned 
and  v.ise  physician  would,  a  plaster  healing  iu  character  and  co-exlen- 
sive  with  the  wound.  We  thought,  and  we  think,  that  we  had  partially 
succeeded  ;  but,  as  the  work  jirogresses,  as  reconstruction  seemed  to  be 
taking  place,  and  the  country  was  becoming  reunited,  we  found  a  dis- 
turbing and  marring  element  opposing  us.  In  alluding  to  that  clement 
I  shall  go  no  further  than  your  convention,  and  the  distinguished  gen- 
tleman wlio  has  deliveretl  to  mo  the  report  of  its  proceedings.  I  shall 
make  no  reference  to  it  tliat  1  do  not  believe  the  time  and  oecasiou 
justify. 

"  '  We  have  witnessed  in  one  department  of  the  government  every 
endeavor  to  prevent  the  ;'esloration  of  jicace,  harmony  and  union.  Wo 
Lave  seen  hanging  iii)on  the  verge  of  the  government,  us  it  were,  a 
body  called,  or  which  assumes  to  be,  the  Congress  of  the  Unitctl  States, 
while,  in  fact,  it  is  u  Congress  of  only  a  part  of  the  States.  We  inive 
Been  this  Congress  pretend  to  be  for  the  Union,  when  its  e'lxry  step  and 


§  IIX] 


AliTIC'I.ES    A(iAlNST   .XtllNSON. 


fio5 


!iit  ti'inUd  to  piM'peluati'  disiiiiion  siiid  iiiiiko  a  disniptioii  of  tin-  S!!ili>a 
iMi'\  italile.  *  *  *  Wo  U^.\\•^•  wren  ('<)ii<;ri'ss  <j;riulii!illy  iiiciciiicli,  strp  liy 
sli'p.  upon  coiistitiitioiiiil  ri^lits,  uiid  violate,  tlay  after  <l;i_v.  and  iiioiilh 
iiflir  inoiitli,  fiindaiiitMitiil  principles  of  the  j;overnineiit.  We  have  seen 
n  ('oii}rress  tliat  seemed  to  forjiet  that  there  was  a  limit  to  the  sphere 
!ind  scope  of  legislation.  We  have  seen  a  Con<;ress  in  a  ni.nority 
assnine  to  exercise  power  which,  allowed  to  be  consnniniated,  would 
result  in  despotism  or  monarchy  itself.' 

'•  Sjii'cijini/ioit  Sfmiid.  —  111  this,  tliiit  at  Cleveland,  in  the  State  of 
Oliio,  heretofore,  to  wit,  on  the  third  day  of  JSeptemher,  in  the  year  of 
(iiir  l.ord  one  thousiind  eiirht  hundred  and  sixtj'-six,  before  a  public  as- 
•ifmli|;\i:e  of  citizens  and  others,  said  Andrew  .lohnson.  President  of  the 
I  nited  .States,  speaking  of  and  concerninjj;  the  t'onnress  of  the  I  niled 
Slates,  did,  in  a  loud  voice,  declare,  in  substance  and  effect,  among 
other  things,  that  is  to  say  : 

"  •  I  will  tell  yon  what  1  did  do.  1  callcil  njwn  yo.ir  Congress  that 
is  trying  to  break  up  the  government.' 

•  ••••••• 

"  'In  conclusion,  besides  that,  Congress  had  taken  much  piuns  to 
poison  their  constitu'nta  against  him.  But  what  had  Congress  done? 
Have  they  done  anylhiug  to  restore  the  union  of  these  States?  \o  ;  on 
the  contrary,  they  had  done  everything  to  'uevi'nt  ii  ;  anil  because  he 
stood  now  Avhere  ho  did  when  the  rebellion  commenced,  he  had  been 
(leiiouneed  as  a  traitor.  Who  IimiI  nu  greater  risks  or  made  greater 
saerilices  than  himself?  Ibit  Congress,  factious  and  domineering,  had 
lison  the  minds  of  the  Amei' 


1" 


peop 


'•  .S'/y(((/(,((//oy/  Tliiril.  —  In  this,  that  at  St.  Louis,  in  the  State  of 
.Mi>sonri,  heretofore,  to  wit,  on  the  eighth  day  of  September,  in  the  year 
111'  our  Lord  one  thousand  eight  hundred  and  sixty-six,  before  a  public 
M-seniblage  of  citizens  anil  others,  said  Andrew  .lohnson.  President  of 
the  Inited  State§,  speaking  of  a. id  concerning  the  C 
liiited  States,  did,  in  a  loud  voice,  declare 
aiiiiiiig  other  things,  that  is  to  say  : 

"  '  (io  on.      Perhaps  if  you  had  a  word  or  two  on  the  subject  of  New 
(lileaus  vou  miuht  nnderstaiid  more  about  it  than  vou  ilo.     And  if  von 


ougress  of  the 
substance  and  etTect, 


will  go  back  —  if  VI 


ill  iro  back  and  ascertain   the  cause  of  the  riot 


at  New  Orleans,  perhaps  you  will  not  be  so  prompt  in  calling  out  New 
Orleans.  If  you  will  take  u))  the  riot  at  New  Orleans,  and  trace  it  back 
to  its  source  or  its  immediate  cause,  you  will  tind  out  who  is  responsible 
fi>r  the  blood  that  was  shed  there.  If  you  will  take  up  the  riot  at  New 
Orleans  and  trace  it  back  to  the  radical  Congress,  you  will  llnd  that  the 


Soli 


IMTKACHMKNTS. 


[chap.  XIII. 


rii)t  at  Ni'w  OrloiitiH  was  nubstaiitiiiUy  (ilanucU.  If  you  will  take  up 
till"  pnx'onlings  in  tlii'ir  caucuses  you  will  uiHlprstund  that  they  there 
knew  that  a  convention  was  to  be  called  which  was  extinct  by  its  power 
haviiiu;  expired  ;  that  it  was  said  that  the  intention  was  that  a  new  f^overn- 
inent  was  to  be  orjfanized,  and  on  the  ors^anization  of  tliat  {iovernmeiit 
the  intention  was  to  enfranchise  one  portion  of  the  population,  called 
the  colored  population,  who  had  just  been  emancipated,  and  at  the  Hainc 
time  disfranchise  white  men.  When  you  desii;n  to  talk  aboi't  New 
Oilcans  you  ought  to  understand  what  you  are  talkinj;  alxiut.  When 
you  read  the  speeches  that  were  made,  and  take  up  the  facts  on  the 
Friday  and  Saturday  before  that  convention  sat,  you  will  there  lind  that 
speeches  were  made  incendiary  in  their  character,  excitiiii;  that  por- 
tion of  the  population,  the  black  population,  to  arm  themselves  and 
prepare  for  the  shedding  of  blood.  You  will  also  find  that  that  eoii- 
vention  <lid  assemble  in  violation  of  law,  and  the  intention  of  that  con- 
vention 'vas  to  supersede  the  reorganized  authorities  iu  the  (Slate  ;;ov- 
eriiment  of  Louisiana,  which  had  been  recognized  by  the  government  of 
the  United  Stales;  and  every  man  engaged  in  that  rebellion  in  that 
convention,  with  the  intention  of  superseding  and  upturning  the  eivil 
government  which  had  been  recognized  by  the  government  of  tlie  rnilid 
States,  I  say  that  he  was  a  traitor  to  tlie  Constilution  of  the  I'liitcil 
States,  and  hence  you  lind  that  another  rebellion  war'  commenced,  hncii.ij 
its  origin  in  tlw  nulind  Comjrcs.i. 

•  ••*  ••*• 

"  '  So  nnicli  for  the  New  Orleans  riot.  And  there  was  the  cause  an<l 
the  origin  of  the  blood  that  was  shed,  and  every  drop  of  blood  tiial  was 
shed  is  upon  tlu'ir  skirls,  and  they  are  responsible  for  it.  I  could  te.-t 
this  thing  a  litllc  closer,  but  will  not  do  it  hero  lo-right.  Hut  when  you 
talk  about  the  cause,  anil  conse(iuences  that  res  illed  from  proeeedinjin 
of  that  kind,  perhaps,  as  I  have  been  introduced  here,  and  you  have 
provoked  ([uestio'is  of  this  kind,  though  it  docs  not  provoke  me,  I  will 
tell  you  a  few  wholesome  things  that  have  been  done  by  this  nidieal 
Congress  in  connection  with  New  t)rlcans  and  the  extension  of  the  eiee- 
tive  franchise. 

"  I  know  that  I  have  been  traduced  and  abused.  I  know  it  has 
come  in  advance  of  un^  here  as  elsewhere,  that  I  have  attempted  to  ex- 
ercise an  arbitrary  jKiwer  iu  resisting  laws  that  were  intended  to  he 
forced  upon  the  govennnent ;  that  1  had  exercised  that  power;  that  I 
had  abandoned  the  party  that  elected  me,  ami  that  I  was  a  traitor. 
because  1  exercised  the  veto  power  in  attempting,  and  did  arrest  for  a 
time,  a  bill  that  was  called  a  '  Kreedinan's  Itureau  '  bill  j  yes,  that  I  wa* 


§90.] 


ARTICLKS   AGAINST  JOHNSON. 


557 


utriiitor.  And  I  have  been  traduced,  I  liave  been  slnndorod,  I  linvt^ 
lu'i'ii  maligned,  I  have  been  called  Judas  Iscariot,  and  all  tlint.  Now, 
my  countrymen,  here  to-night,  it  is  very  easy  to  indulge  in  cpillii'ls ;  it 
is  easy  to  call  a  man  Judas  and  cry  out  traitor;  but  wiien  he  i.s  ciilled 
::i)oii  to  give  arguments  and  fads  he  is  very  often  found  wanting, 
.hulas  Iscariot  —  Judas.  There  was  a  Judiis,  iiiid  he  was  one  of  tlie 
twelve  apostles.  Oil  I  yes.  the  twelve  apiLstles  had  a  Ciii-ist.  The 
twelve  apostles  had  a  Christ,  and  he  never  could  hiive  had  a  Judas  un- 
ions he  had  had  twelve  apostles.  If  I  have  phiyed  the  Jmhw,  who 
iiiis  been  my  Christ  that  I  have  played  tiie  Judas  with?  Was  it  Timd. 
Stevens?  Was  it  Wendell  Phillips?  Was  it  Cliarles  Sumner?  These 
nio  the  men  that  stop  and  compare  themselves  with  the  Saviour ;  and 
everyliody  that  differs  with  them  in  ojiinion,  and  to  tiy  to  slay  and 
nrrest  Uieir  diabolical  and  nefarious  policy,  is  to  be  denounced  as  a 
.ludas.  .  .  .  ' 

" '  Well,  let  me  say  to  you,  if  you  will  stand  by  me  in  this  action,  if 
you  will  stand  by  me  in  trying  to  give  the  people  a  fair  chance  — 
soldiers  and  citizens  —  to  participate  in  these  ollices,  Goil  being  willing, 
J  will  kick  them  out.      I  will  kick  them  out  just  as  fast  as  I  can.' 

"  Let  me  say  to  you,  in  concluding,  that  what  I  have  said  I  intended 
to  say.  I  was  not  provoked  into  this,  and  I  care  not  for  their  Unuaces, 
the  taunts,  and  the  jeers.  I  care  not  for  threats.  I  do  not  intend  to 
he  bullied  by  my  enemies  nor  overawed  by  my  friends.  Hut,  (Jod 
willing,  with  your  help,  1  will  veto  their  measures  when  any  of  them 
come  to  me.' 

"  Which  said  utterances,  declarations,  threats,  and  harangues,  highly 
censurable  in  any,  are  jiecidiarly  indecent  ami  unbecoming  in  the  Chief 
Magistrate  of  the  Tnited  Slates,  by  means  whereof  said  Andrew  John- 
son has  brought  the  high  olllce  of  the  President  of  the  I'niliMl  Slates  info 
contempt,  ridicule,  and  disgrace  to  the  great  scandal  of  all  good  citizens, 
wliereby  said  Andrew  Johnson,  President  of  thel'iiited  Stat<'s,  did  com- 
mit, and  was  then  and  there  guilty  of  a  high  misdemeanor  in  ollice.""* 

"That  said  Andrew  Johnson,  President  of  the  I'nited  States,  un- 
iriindful  of  the  high  duties  of  his  olllce,  and  of  his  oath  of  ollice,  and  in 
(lisivgard  of  the  Constitution  and  laws  of  the  I'nited  States,  did,  here- 
tofore, to  wit,  on  the  eighteenth  day  of  August,  A.I),  eighteen  htmdrcd 
and  sixty-six,  at  the  city  of  Washington  and  the  District  of  Cohimbia, 
by  public  speech,  declare  and  alUrm,  in  substance,  that  the  thirty-ninth 
Congress  of  the  United  Slates  was  not  a  Congress  of  the  United  States 
authorized  by  the  Constitution  to  exercise  legishitive  power  under  the 

**  Johnson's  Impeachment  Trial,  Article  X,  iip.  8-i). 


658 


IMl'KACIHMENTS. 


[CHAl'.  XIII. 


Biiiiii',  but,  oil  till'  contrary,  was  a  (  oii<ire8s  of  ouly  part  of  tlie  Stnics, 
tlicrt'lty  ileiiyiiifi,  niitl  iiiifiiiliii>r  to  deny,  tliat  tlio  le^iisliiliou  of  Maid 
Congress  was  valiil  or  ol)lii;atury  upon  him,  tiio  said  Amlrcw  .lolni-im, 
I'xci'pt  in  so  far  as  lie  saw  tit  to  approve  the  sanii-,  and  also  ilicirliy 
denyin<;,  and  intending  to  deny,  tlie  power  of  lliu  said  tliirly-iiiutli 
Conjrrcss  to  projiose  aniendnientti  to  the  Constitution  of  tlie  Uniiod 
States  ;  and  in  pursuance  of  said  declaration,  the  said  Andrew  Joliiisdn, 
I'ri'sidcnt  of  the  United  Stales,  afterwards,  to  wit,  on  the  tweiity-lirst 
day  of  February,  A.I),  ei^^hteen  hundred  and  sixty-ei»lit,  at  tii's  oily 
of  \Vashiii;j;ton.  in  the  District  of  Columbia,  did,  unlawfully,  and  in  dis- 
re<;ard  of  the  requireiiicuts  of  the  Constitution,  that  ho  should  take  care 
that  the  laws  be  faithfully  executed,  attempt  to  prevent  the  execulioii 
of  ail  act  entitled  '  An  act  reffiilatin"?  the  tenure  of  certain  civil  odicps,' 
passed  March  second,  eiiihleeu  hundred  and  sixty-seven,  by  iiiilawfiilly 
devisiiitf  and  contriving,  and  attempting  to  devise  and  contrive  means 
by  which  he  shoulil  prevent  Kdwin  M.  Stanton  from  forthwith  resuming 
the  functions  of  the  ollice  of  Secretary  for  the  Department  of  War, 
notwithstanding  the  refusal  of  the  Senate  to  concur  in  the  suspeusioii 
theretofore  made  by  said  Andrew  .lohusou  of  said  Kdwin  M.  Staiitou 
from  said  ollic^e  of  Secretary  for  the  Department  of  War;  and  also,  liy 
further  unlawfully  devising  and  contriving,  and  attempting  to  devise 
and  contrive  means,  then  and  there,  to  prevent  the  execution  of  au  act 
entitled  '  An  act  inakiiig  appropriations  for  the  support  of  the  aviiy  for 
the  fiscal  year  ending  June  thirtieth,  eighteen  hundred  and  sixty-eiirlit, 
and  for  other  purposes,'  approved  March  second,  eighteen  hundred  and 
sixty-seven;  and,  also,  to  prevent  the  execiiti<m  of  au  act  entitled  'an 
act  to  provide  for  the  more  edicient  government  of  the  rebel  States,' 
passed  .March  second,  eighteen  hundred  and  sixty-seven,  whereby  tlie 
saitl  Andrew  Johnson,  President  of  the  United  States,  did,  then,  to  wit, 
oil  tlie  twenty-first  day  of  February,  A.D.  eighteen  hundred  and  sixty- 
eight,  at  the  city  of  Washington,  commit,  and  was  guilty  of,  a  liitjii 
misdemeanor  in  ollice."'* 

'!"iie  defense  of  the  President  was  inimasred  with  frroat  t.ict  and 
skill.     He  himself  did  not  aiipcar  at  the  trial.*     His   leading 

"  Johnsoirs    Inipea<!hmcnt    Trial,  to  )m  tried   nreordlnn  to  Uio  funns 

Article  XI,  p.  10.  of    the   EmkHsIi   Inw,  --or  as  Jiiil(?o 

■""I  liud  l)roii(<ht  it  to  Iho  iitten-  Clinso    had    h-en    tried    wlwii    Aaron 

tion  of   the  boinil  of  inaiiaK'M's  tlin'  Burr    prcsii'.'d    over    the    Scnali', 

wo  should  have  Mr.  .lolinsoii  liroiinnt  and  rccinircd  liy  the  prrsidiiiK  ni'''''^ 

In  and  jilnccd  at  the  bar  of  the  Son-  to  i-t.ind  until  tlioSonato  offorod  him 

ate,  —  and    ri'nuired    liy  the    aouato  a  elmir.     But  our  board  of  imuiftgois 


§  •'"•] 


JOHNSON  8    COUNHKL. 


659) 


I'diiiiHi'l,  wlio  introduced  tlie  tostiinoiiy  oilVivd  in  liis  hupjiort, 
wiis  tlio  forniur  attoniry-freniTiil,  Jleiiiy  Stanbtiry,  who  ivsi.Micd 
in  nnlir  to  dufuiid  him.  lie  was  an  old  Wliig  who  liad  alia  iiud 
;.niMt  iMiiinence  at  the  ])ar  in  Ohio.  Having  advisod  tiu;  I'rt'siilciit 
lliioiiLfiiout  tlio  I'onree  of  events  wliich  led  to  his  iiiipeaehnieiit, 
111'  was  thoroughly  familiar  with  all  the  arguments,  decisions, 
iiiiil  evidence  that  eould  he  used  in  his  defense.  He  j)()sscs.st'd 
a  remarkahle  faculty  of  clear  and  conii)act  reasoning.  Illustra- 
tions may  he  found  in  his  arguments  heforo  the  Supreme  Court 
on  constitutio-  1  questions  when  attorney-general,  many  of  which 
are  n-jiorted  hy  \'allace.  This  proceeding  was  a  (itting  ti-rniina- 
tion  of  his  jjuiilii'  life;  for  the  Senate,  after  llie  trial,  ivfuscd 
to  eonlirm  his  renondnation.  So  that  he  sacriliccd  his  posi- 
tion li}'  his  devotion  to  his  chief.  vVnother  was  Henjaiidn  K. 
Curtis,  who,  as  Justice  of  the  Sui)reme  Court  of  the  I'nitcd 
States,  had  writti;n  the  dissenting  oj)inion  in  the  Dred  Scott  case, 
whicii  was  the  repository  of  tlu;  arguments  in  support  of  the  con- 
stitutional views  of  the  Fret;  Soil  party.  Shortly  after  rendering 
th;it  decision,  he  had  rcsigne<l  and  returned  to  practice  in  Massa- 
ciuisetts,  where,  until  his  death,  ho  was  constantly  retained  in  tho 
cases  of  most  importance,  not  only  before  the  State  Supreme 
Court,  hut  also  in  other  States,  and  before  the  Supreme  Court  of 
tiic  I'nitf.'d  States.  At  his  death,  he  was  considered  by  his  breth- 
ren in  Massachustitts  to  be  tho  leader  of  tlu;  Americiin  bar.  His 
arguments  on  questions  of  law  were  famous  for  the  manner  in 
wiiicli  he  would  present,  without  a  superlluous  word,  every  sug- 
gestion that  could  aid  his  cause.  IMiat  which  has  been  praised 
the  most  was  his  opening  for  the  defense  of  I'residcnt  Johnson, 
It  is  said  that  as  soon  as  lie  was  retained  by  the  President  he  pur- 
ciiased  the  English  State  Trials  and  read  through  tlie  re[)orts  of  all 
that  hid  taken  place  before  the  House  of  l^ords.  Witli  him  was 
a.ssoei!vte<l  William  M.  Evartji,  afterwards  attorney-general,  secre- 
tary of  state,  and  senator  of  the  United  SUites.  He  was  then  the 
acknowledged  leader  of  tlie  bar  of  New  York,  where  the  competition 
is  siiarper  than  in  any  other  place  in  the  world.  He  possessed  not- 
only  learning,  but  unusual  tact  in  the  management  of  a  case,  skill  in 

wns  too  woak  In  the  knees  or  back      son  did  not  attend."     (Butler's  Book,. 
to  insist   upon   tills,   and  Mr.  John-      p.  U29.) 


560 


IMPEACH  MKNTS. 


[chap.  XIII. 


unfolding  a  legal  argument  and  reitcratiiig  the  same  point  in  dill'tr- 
ont  languagt.',  togetiier  witli  wit  to  enliven  it,  and  iiold  tiie  atten- 
tion. —  faculties  indispen.sal)le  to  great  snceess  liefore  a  larLfc 
audience.  To  these  talents  he  owed  his  triumphs  in  tlie  LfnMt- 
est  trials  of  his  generation,  wliicli  wen;  the  most  important  tiial 
the  wiirld  lias  ever  seen,  lie  was  on  th(^  winning  side  on  the  ini- 
peai'linicnl  trial  of  {'resident  .Johnson,  Ix'fore  tiie  I'.leetoi'al  dini- 
niissiiin,  and  at  tlie  (iencsa  .Arhitration.  The  (dose  of  his  politiial 
earcer  was  marked  lij'  tlie  jiassage  of  the  Evarts  Aet;  whicii 
relieved  the  Supreme  Court  of  the  I'nited  States  from  the  aecu- 
mulation  of  work,  that  made  it  im[)ossil)le  for  iheni  to  eoni- 
plete  and  discharge  the  duties  imposed  on  them  by  statute,  and 
created  tlie  Cirenit  Courts  of  Appeals.  He,  like  Curtis,  was  a 
]{epul)liean. 

Altlioiigh  it  was  said  hy  many  that  his  concluding  speech  con- 
tained not  a  single  argument  that  had  not  been  advanced  in  the 
oiicning  of  Curtis,^"  wiiieli  was  so  adininihle  as  a  jiresentation  of 
questions  of  law  to  trained  legal  minds;  yet  its  wit.  its  appeals 
to  the  motives  wliicli  often  uneonsciously  intlueiice  men's  judg- 
iiKMits,  and  at  times  its  elocpienee,  mady  it  undoubtedly  more 
effective  upon  the  ordinary  senator. 

'J'iie  famous  Jeremiah  S.  Hlack  was  at  oi.e  time  counsid 
for  tiie  President,  hut  at  the  last  moment  he  withdrew.  Two 
Deinocratie  lawyers  were  retained.  William  S.  (Jroesbcck  of 
Cincinnati,  Ohio,  will)  lia<l  been  a  Democratic  representative  in 
Congress,  contributed  a  masterly  argument  upon  the  legal  (lues- 
tioiis  in  the  case.  A  confidential  friend  from  his  own  State,  Ten- 
nessee, 'I'homas  A.  It.  Nelson,  was  added  bj'  Johnson  in  order  that 
Uh'  President  might  present  those  views  of  the  Constitution  wliidi 
he  himself  had  most  at  heart;  although  in  the  conduct  of  the 
trial,  no  other  attention  was  paid  to  them. 

Cireat  pains  were  taken  to  eoneiliate  public  opinion.  On  the 
day  following  Stanton's  removal,  (Jeneral  Thomas  Ewing,  formerly 
a  senator  from  Ohio,  was  nominated  as  his  successor.  Ewings 
nomination  was  of  course  rejected;  but  his  position  in  the  Rcpuli- 

■■"  "  It  Is  due  to  tlio  truth  of  history  was  said  in  liisbclinlf,  although  In  thi" 

to  say,  ns  her 'lii'lore  remarked,  thnt  live  or  nix  elo.siiin  spoeehcs  presontod 

after  he  had  presented  the  eiiwo  of  his  by  his  other  counsel,  much  else  was 

client,  In  my  Judgment,  nothing  more  said."     (Ibid.,  p.  030.) 


S  "0.] 


JOHNSON  .S    TRIAL. 


■■)t;i 


liiiiii  party,  and  his  war  rt'tiord  wore  sucli  as  to  indicate  to  tiie 
liul)lic  tliat  Joimsoii  had  no  intention  to  crjrrupt  the  army  and 
use  military  force  to  aid  tiie  Soulii  in  tlieir  slrnpp^lo  for  r'pie- 
Kciilation.  TliroUf^iiont  the  trial  all  of  IiIh  counst'l  lint  Nel- 
t-oM  coidined  Ihemselve.s  to  the  [iresentation  of  the  (pu's'loiis 
vif  statutory  and  eoiistitutional  law  raised  hy  the  articles;  to 
the  construction  of  tin;  Tenure  of  OHice  Act.  the  jiower  of 
('onf,''ress  to  enact  it.  and  the  power  of  the  Senate  to  impeach  a 
I'rcsident  for  had  taste  in  his  speeches  on  the  stump;  upon  ail 
cil'  which  puhlie  opinion  in  the  North  was  not  excited ;  thus 
^ivdidiufj  the  questions  iis  to  the  power  of  the  House  and  the 
Senate  to  exclude  representatives  from  the  States  which  ha<l  lately 
liiii  in  rei)ellion,  the  constitutionality  of  the  Heconstniction 
Act-;,  and  other  (piestions  as  to  which  the  voters  had  recently 
^lidwii  that  they  were  not  in  symj)athy  with  the  administration. 
Al  the  oiieninif  of  the  ease,  hefore  the  answer  of  the  I'lesiilent 
\v;is  liled.  Senator  Davis  of  Kentucky  moved  the  adoption  of  the 
fiillowing  order:  — 

"  The  Constitution  havinfi  vpsted  the  Senate  with  the  solo  power  to 
tiy  tii(!  articles  of  iinpeaehinent  of  the  President  of  the  I'nited  States 
prrferreil  l)y  the  House  of  Hepresentatives,  .and  li:ivin<;  also  declared 
lliMt  'the  Senate  of  tlie  I'nited  States  siiall  he  composed  of  two  Sena- 
tors fi\)in  each  State  chosen  hy  tiic  legislatures  thereof,'  and  the  Stales 
of  Virginia,  North  Carolina,  South  Carolina,  (ieor<ria,  Alabama,  Mis- 
sissi])])!,  Arkansas,  Louisiana,  and  'I'cxas,  having  each  by  its  legislaliu'e 
chosen  (wo  senators  who  have  been  and  continue  to  be  excluded  by  the 
vSiiiate  from  their  seats  respectively,  without  any  judgment  bv  the 
SiMiate  against  them  personally  and  individually  on  the  points  of  their 
I'lcctious,  returns  and  (pialilieations,  it  is 

"  Onli'red,  That  a  Court  of  Impeachment  for  the  trial  of  the  Presi- 
(Knt  cannot  he  legally  and  constitutionally  formed  while  the  senators 
from  the  States  aforesaid  are  thus  excluded  from  the  Senate;  and  this 
case  is  continued  until  the  Senators  from  these  States  are  permitted  to 
tiike  their  seats  in  the  Senate,  subject  to  all  constitutional  exceptions 
to  their  elections,  returns,  and  qualificatiouB  severally."' 

The  counsel  for  the  President  offered  no  argument  and  no  con- 
currence in  this  motion,  which  was  defeated  by  a  vote  of  40  to  2:^ 

"  Johnson's  Iniponchmont  Triul,  p.  3G.  The  noes  were  Garrott  Davis,  and 
M(;Croory,  of  Kentucky. 


562 


IMPEACHMENTS. 


[('MAP.  xirr. 


Chief-JuBtice  Clinse  ])reHuletl  vvitli  j;reiit  iiniiiirtialitv ;  uml  Iim 
(lccisii)ii8  oil  jMiiiits  of  evidence  were  fietiueiitly  ovfriulcd  liv  tin; 
Uej)iilili(;iiii  niiijority  of  tlie  Senate.  Tiie  uiiswer  fif  the  I'lesidciit 
was  sliort  and  clear.  It  rested  IiIh  defense  upon  tiie  legal  (|iu'*- 
tions  wliicli  have  heen  stated  alK)ve,  and  whieli  were  iindonl)l('illv 
tlie  grounds  of  his  ae(|uittal. "  The  ease  was  opt^ned  hy  (icntral 
Hulier,  one  of  the  tnanapers  of  the  I  louse  of  Keprescntativcs.'" 
His  avj^Minii'iit  was  extremely  adroit,  and  was  accompanied  iiy  iv 
learned  hrief  upon  the  law  of  impeacliahli'  crimes  and  misdciiicMii- 
ois.  piipai'cd  hy  William  Lawrence,  a  memher  of  Conifress  I'luiii 
Oliio,  wliicii  is  of  frreat  vidnc  to  all  slndeiit<  of  the  sniiject.  ISiit- 
ler's  examiiialion  of  the  witnesses  of  tiie  House  was  innstcilv, 
both  for  M'liat  he  linmirht  out.  and  for  tlie  manner  in  wiiicli  lie 
dis|ilayed  to  the  audience  and  puhlic  matters  reHeetini,'  iipdii 
the  l*r((sident.  whicli  wen-  excluded  as  iueompetent.'"'    'I'iie  hoiior-i 


"'"WliPii  llio  liD.-ml  lit  iimniiHLMH 
mi'l,  TliiiddiMiM  Hli'Vi'iiH  of  I'cMiiisyl- 
vaiiia.  tliii  '  ni'''iit  Coiiiiiioiicr,  hh  ln' 
was  hi  \  li'i!,  ^vi^lM'll  t(!  Ill'  I'liDsi-ii  I'liair- 
niaii  (if  till-  li(iai(l,  as  lii'  hail  diaHii  up 
oni"  <if  till'  Hiticlt'h  of  inipcai'liiiirilt. 
Wliili'  111'  was  a  vi'iy  Kieat  man,  hi' 
was  M'ly  irnilic,  and  the  iiiajoiily  of 
the  board  was  in  favor  of  Ihi' appoint- 
niriit  of  llio  Hon.  Geo.  S.  lioiitwi'll,  of 
Massarliusi'tls,  afterwards  Si'orrlary 
of  till'  Troasuiy,  or  of  the  Hon.  John 
A.  Itin^'liain,  of  Ohio.  And  I  siipg^oKO 
it  is  no  liariii  to  stad'  at  this  day,  that 
('Oiisidcralili'  airinioiiy  aroso  botwoi'n 
till'  lllalla^,'<•rs  on  tin'  snlijort.  I  took 
no  part  In  this  Ikh'.hiisi'  I  wasiloslrous 
of  having  niy  own  place  In  the  flint 
pri'si'iitalion  of  tlio  iMsetothi'  Si'iiatc. 
This  would  insure  my  pnltinK  Uie  evi- 
denee  liuforo  the  Senate  in  the  trial. 
The  Hoiii^o  insisted  upon  ininiediati! 
prosecution.  \Vu  had  hut  three  Uays 
then  In  wliiili  to  net  our  ease  ready 
and  [ii'i'pare  the  o|>cniii);  artsumcnts 
for  its  pri'sentatlon  heforo  the  iiinliest 
court  of  justice  in  the  land.  We  s(ient 
most  of  the  inorniiiKover  the  questiou 
of  selecting  the  chief  nianaKcr,  —  in 
selec'tinu  the  Uou.  Thuddeus  Stuvous, 


chairman  of  the  lio.'inl,  who  was  to 
make  the  c'osiii;^  ar<.(unient  in  lichnlf 
of  the  House.  That  having  Iiecii  .'-el- 
tleil,  I  .sail!  :  '  liiil  who  is  to  iii.iki'  tlio 
opening aiKUinent,  and  pii;  lliecaseiri 
form  for  presenlallon  in  the  Scinli'? 
Therearo  less  than  three  days  In  wl  irli 
to  [irejiare  it.  Who  is  an.Nioiisfnr  Unit. 
place'/'  Tliere  were  not  ninny  caiuli- 
dali's  for  this  lalxir,  and  I  .said  :  •  Very 
well,  I  snp|iose,  as  usual,  the  opening 
of  the  ease  will  fall  upon  the  yoiin;_'iHt 
counsel,  ami  that  is  myself.'  The  iiiciii- 
liers  of  till!  hoard  unanlnniusly  s.ilil: 
•  Will  you  undertake  iV! '  '  Yes.  If  llio 
hoard  desires  It,  and  no  one  else  will 
have  it,  I  will."  It  was  agreed  upon 
that  I  should  prepare  the  case  .iiiil 
make  the  openiiifi  arfjunioiit,  anil  I 
thought  that  it  would  not  he  of  nuii'b 
couseiiuonee  after  that  was  ilnm'  who 
did  the  rest.  And  thus  I  heiane'  the 
leading  llgure  of  the  impeailiiiient,  for 
better  or  worse."  (Butler's  Book,  pp. 
!)'27-y2H. ) 

*"  "The  inorninR  otter  the  opening 
of  the  urKUinont,  I  asked  one  of  tlm 
board  of  managers,  a  very  clever  (.'I'li- 
tleinan,  to  have  the  kindness  lo  ulTcr 
u  piece  of  written  evidonco,  but  his 


§00.]  .IOHNHON's    TICtAI,.  M8 

ol  the  impoacliment  wero  curried  off  by  liim ;  altlinuiili  tlu;  coii- 
cluiliiiL,'  a:|fuiiu'iit  of  JdIiii  A.  Hin^r|iain  wsis  iicrlmps  tliiil  wliiili 
(lispliiyt'il  tilt'  most  oi'utorii'iil  iiliility.  Uutlcr  opened  the  case  for  the 
House  on  March  'iOtli,  and  the  trial  continued  almost  daily  until 
.Miiytith,  iHtiH,  when  the  wiiole  case  wa-t  suhniitted  to  the  Senate. 
A  few  days  were  oecaipied  in  the  settlement  of  the  form  of  the 
(|iiestion  and  the  practice  iipon  the  judj^ment.  and  there  was  a 
short  adjournment  on  aeeouutof  the  illne-ssof  one  of  the  senatoi-s. 
At  the  SiMiate  conference  it  appeared  that  two  at  least  of  those 
wild  were  in  favor  of  a  conviction  were  iinwillinfj  to  sustain  the 
article  which  eharfjed  a  violation  of  the  Tenure  of  Olliee  Act,  since 
llicy  li.'licved  that  Stanton's  ease  was  (!xcc])tcil  by  its  proviso.'" 
For  the  test  vote,  accoi'diii^ly,  they  selected  the  concluding' article, 
wlii'li  incluiled  several  ciiarges,  a  belief  in  the  sudiciency  of  any 
one  of  w  hich  mit^ht  be  sullieient  to  satisfy  the  conscience  of  a  sen- 
ator who  voted  "f^iiilty,"  to  the  wliole.^^  On  May  l(!th  liiat  vote 
uiis  taken  and  the  resiion<lent  was  ac(]iiittetl  I)y  tlu;  votes  of  iiine- 
trcn  senators  "  not  guilty,"  iipfainst  thiitytive,  "},'uilty";  the  ma- 
jority lacldnj;  oidy  out;  of  the  i-c(|iiisite  two-thirds.  The  I'rcsidcnt 
of  the  Senate,  ISenjamin  F.  Wade  of  Ohio,  who  would  have  suc- 
ceeded Johnson  upon  a  conviction,  voted  guilty. 

An  adjournment  was  taken  until  the  iCitb ;  and  meanwhile 
,i,Teat  [ircssure  was  brought  upon  llie  recalcitrant  Hei)ublicans, 
one  of  whom,  Sentitor  Uoss  of  Kansas,  it  was  believed,  ha<l  been 
Won  over  to  the  side  of  eonviction.^^  Hut  the  votes  were  tak  ii 
upon   the  second  and   third  artiile-;  with    precisely  the  same   re- 

liiiiid  sliooli  so  wlilli^howus  I'xnmiiiiriK  way  I  know  how  lo  coniluct  a  ca:-)'.' 

llii'  iiii|>i'i',  that  I  coimIiuIciI  to  relievo  Fiiiilin;,'  ino  iiicorri^jililo,  tlicy  Icfl,  iiio 

liiiii.     Aslor  iii.vsi'lf,  I  caimUo  the  con-  lo  my  (Icvlccs."     (BiUler's  lionU,  |i|). 

linsion  lo  try  llio  cnse  u|ion  thoHanio  \)'l'.)  ',I:10.  i 

riili's  of  ovUliMK'c.  and  in   tlio  sanio  ■"  l*i)llti<'al  Li'hiIcih  of  tlio  Iti-ion- 

iiiioHMM'  an  I  Rlioiild  try  a  IjorsiM'aso,  siniclion  IVi  .id,  liy  K.  (l.  l{o■-^^,  Tin) 

iind  I  lincw  liow  lo  do  that.     I  lliori'-  Fonini,  vol.  x.\,  pp.  21S,  2jr> ;  ()|iiiiiiiii 

fort'  was  not  in  trepidation.     When  I  of  Senator  SluM'nian,  .Iolinson'.s  Trial, 

(lis'ussi'd  tlialcinestion  with  the  man-  vol.  iii,  |i.  1 ;  Opiuionof  Senator  Howe, 

a^ers  tlioy  suemed  to  lio  u  fjood  deal  iliid.,  p.  58. 

cut    >ip.      They   said :     '  This   Ib  tlie  *'-  .lohnson's    Ini|)eaehment    Trial, 
lireati'sl  cnso  of  tin-  times,  and  It  is  vol.  ii,  p.  4H4.    SlePhorson,  History  of 
lo  1)0  eonduoted  in  the  liighost  possi-  tlio  lliMonstriietion,  ]).  2H'2. 
Iile  nianiior.'     '  Yoh  '  I  wild,  '  and  that  *' Ulalne,    Twenty   Yours    in    Con- 
is  aceordiug  to  law;  that  is  tbo  only  gross,  vol.  11,  p.  375.     Au  attempt  to 


'>64 


IMTKACIIMKNTS. 


[('MAP.  xrfr. 


suit.  Tlic  court  tli.-ii  adjoiinicil  willioiit  ii  diiy,  and  tliu  Cliicf 
.liisticu  (tillered  a  jiid^rriiciit  of  iiccjuittal  iijioii  tlicsi;  tliici.-  iirticlcs. 
'rwuiity-iiinii  HunalDrH  aftiTwai'ds  lili'd  niiiiiioiis  in  jiiHtilicitiim  of 
tli(!ir  votes.  Tlie  niinoi'ity  included  ci{,dit  DcinocratH  and  four  ilc- 
|iiil)licaii  sMiiportcrs  of  tlu?  adniinistralion  \v1ioh<!  votes  for  an  ac- 
<]nittal  were  in  accordance  with  llicir  |ioliticai  iiosiliou.  'I'lie  scalo 
was  tmiieil,  liowcvci',  liy  seven  nepiihlicans  wlio  had,  hitherto,  oji- 
|)osed  the  policy  ,     .!ie  l'l•e^idcnt  ; 


nd  wholly  tliis  action  saciilicL'd 
I  heir  hopes  of  a  political  fntun;.  Kor  most  of  tjicni  disoheyed  the  iii- 
sU'ii,  lions  of  iheir  State  legislatures  or  of  the  Icadei's  of  llu- 
StM.te  orj^anizations  of  their  jiarty;  and  in  cons('((Ueneu  lost  all 
(diauces  of  a  re-i'lection.     The  reputation  of  one  or  two 


lay 


Icnil 


•:olor  to  the  suspicion  that  they  were  inlUienced  by  iinprojicr  con 
siderations.  Hut  the  character  ami  position  of  the  rest,  who  thus  in 
ohedienee  to  their  oaths  east  away  the  fihjects  of  their  anihition, 
l)Ut  the  intej,'rity  of  their  motives  In'yond  ail  (juestion.  Their 
judfijment  was  j^iven  because  their  ctuiscienccs  would  not  permit 
udicial  action  in  oi)iiosition  to  their  coiivic^lioiis. 


J I 


And  historv  has 


already  pronounced  her  verdict  that  they  saved  the  country  from 
a  precedent  big  with  danger  and  vindicated  the  wisdom  of  those 
who  made  the  Senate  a  court  for  the  trial  of  inipeaehments.^^ 


oxpol  him  on  tho  cliai'Ko  of  having  soUl 
Ills  voti!  wns  iifloi'wanlH  pnijoctiMl,  liut 
iilmndoni'd.  Politir.il  LimkIcih  of  tho 
Rcconstniclioii  Pori'"!,  by  E.  (I.  Kdmh, 
Tho  Forum,  vol.  xx,  \>.  '227. 

"  William  riU.  Fi'SBonilon  of  Maine, 
.losoph  S.  Fowler  of  Teniiessue,  .lames 
W.  (tiiiiies  of  Iowa.  .John  B.  Himilor- 
Hoii  of  Missouri,  Eilwanl  O.  Ross  of 
Kansas,  Lyman  Ti'iinilnill  of  Illinois 
and  Voter  (i.  Van  Wynklo  of  West 
VirKinia. 

*'  Blaine,  wlio  voted  for  tho  ini- 
|ieaehment  when  in  Iho  House,  eight 
years  hilor  pronounced  his  judgment 
that  tho  proceed  ings  were  not  juslKled 
and  tho  aoquittnl  proper  ( Blaino, 
Twenty  Yearn  in  Congress,  vol.  II, 
pp.  375-383).  Mr.  .lustlee  Miller  wns 
of  the  same  opinion  (Lectures  on  tho 
Constitution,  p.  172).    S.  S.  Cox  In  his 


Three  Decades  of  Federal  Legisla- 
lion,  I'p.  .')H2-.')!»3,  gives  nn  InterpslinR 
account  of  an  interview  between  tho 
I'rosldont  and  Senatiir  Grimes  of  Iowa 
at  tlio  rooms  of  Itevenly  .loluison, 
during  tho  trial,  when  Andrew  Jeiiu- 
Bon  expressed  his  views  of  his  politi- 
cal duly  in  such  a  manner  as  to  con- 
vince tlu^  senator  that  Ills  continimnw 
In  olTlco  would  not  bo  Injuiiouu  to 
tiio  country.  Cox  also  claims  to  have 
InlUienced  Henderson's  volo.  Tlio  ofli- 
eial  report  is  Trial  of  Andrew  Johnson, 
President  of  tho  United  8t;le8,  lietoro 
the  Senate  of  tho  United  States,  on 
Impeachnu'nt  for  High  Criuiea  and 
Misdemeanors.  Published  t)y  Order 
of  tlio  Senate.  Washington  ;  Oovern- 
nient  Printing  Oniee,  1H68.  Tlirci!  vol- 
umes. Vol.  I,  pp.  711 ;  vol.  ii,  pp.  laS . 
vol.  Hi,  pp.  401. 


>'  !'«^-] 


IJFXKNAI'  S    I.MI'KACIIMI-.NT. 


Tin;  iit'xt  impciiilimciit  tii.il  Ijcfcin;  tlie  Sijiiate  of  tliu  riiilcd 
Stiili's   Wdiilil  M'rm   lik(!  an  ,iiiti-<'liiiKix,  wcii;   it  not  fi)r  the  dis- 

l;1;UcI'ii1  llltun^ur  tin;  (•ll,llj;c,  tlu!  illl[i(il'llillt  ((ilistitlltiollill  (lUcS- 
lidii  wliicli  it  laisi'd,  itiiil  tlit;  woinli'iful  aliilily  wliicli  tlic  i;()i,,i.ul 
(III  liotii  siilcs  (lisplayi!!!. 

Ill  1HT(),  ill  tlio  (joiiisu  of  nil  iiivestigiitioii  Ity  ii  coininittt!"  of 
ilif  lloiiso  (pf  IJi'pri'Si'iilativL'S,  it  aiijiearcil  tliat  tliu  Secrrtaiy  of 
War,  William  W.  Mclknait,  had  fo|-  suveral  yuurs  heuii  'vi  iviiijj 
liitwcoii  )!<lj,000  and  !?1 2,000  annually  out  of  tlio  iii-occcds  of  a  post- 
tiailt'iship,  t'h-  incunihunt  of  which  had  heen  ajijHiinted  liy  liiiii. 
I'x'lkiiaj),  as  80011  i\n  tlio  fact  had  hccii  discovered,  resiijiied,  and  his 
icsij^iiatioii  was  accepted  liy  I'resideiit  (Irant.  I'poii  tla^  same 
(lay,  Imt  a  few  hours  hiter  than  the  acceptance  of  the  icsif,'iiatiipii, 
lie  was  impeached.  lie  was  tried  diiriiii,'  the  spriuLj  and  summer 
(if  that  yearlictween  April  Titli  and  August  1st,  when  judjfmeiit  was 
liidiiounced.  The  inauagers  on  the  part  of  tlii'  House  were  Scott 
Lord  (if  New  York,  .1.  I'idctor  Knott  of  Kentucky,  W.  T.  Lyudo  of 
Wisconsin,  .John  A.  iMcMahon  of  Ohio,  Klhiidge  (i.  Lapham  of 
New  York,  and  (Jeorj^e  Frisliie  Hoar  of  Massachusetts.  His  counsel 
were  Matthew  H.  ("arpeiiter,  foriUurly  senator  of  the  United  States, 
•leicmiah  S.  lilack,  formerly  attorney-f^fcneial  of  the  I'nited  States 
iiiiil  justice  of  tJK!  Supreme  Court  of  I'ennsylvania,  and  Moiitgdinery 
II.  Mlair.  I''ive  articles  of  impeachmeut  were  ]ii-esciite(l,  each  of 
which  cliaij^'cd  the  transaction  in  dilTciiiil  furiii.  hut  in  siilistiiire  as 
tlie  acceptance  of  brilies.  A  plea  was  liled  to  the  juiisilictioii  upon 
the  {ground  that,  at  the  time  of  the  impeachment,  lielkiia[i  was  imt 
lui  ollicer  of  the  United  States.  The  plea  was  overruled  liy  tlu! 
Vote  of  a  majority  of  li'ss  than  two-thirds.  The  counsel  for  the 
M'siioiideiit  refused  to  plead  further,  liut  the  case  continued  iiiider 
the  Senate  rules  as  if  a  plea  of  not  guilty  had  hecii  liled,  tin;  wit- 
nesses were  examined  and  cross-ex.. iiiined,  and  argunuiits  niiule 
upon  the  whole  case  hy  counsel  for  liotli  sides.  Upon  the  linal 
Vote,  nearly  all  the  senators  who  had  voted  in  su[Fpoit  of  tlu; 
]ilea,  voted  "not  guilty"  upon  tlie  ground  that  they  had  no  jiiris- 
•liction,  and  consequently  Helkiiap  was  ac(iniited,  since  the  ma- 
jority vote  of  guilty  was  less  than  two-thirds.  All  hut  one  of 
the  senatoi's'"'  who  voted  for  an  aciiuittal  were  mcmliei'S  of  the 
*'  Willium  W.  Entou  of  Connoctieut.     Ills  siicceKsor  wtis  a  liepiibllcan. 


5G6 


IMPEACHSIENTS. 


[chap.  xur. 


IJi'puLlieaii  party,  to  whidi  Hi'lkiiiip  belonged.  A  number  of  Itc- 
])iihlieaii  senators,  liowever,  voted  witli  tlie  other  Democrats  in  llie 
Senate  in  favor  of  bis  eonviction.  The  report  of  the  trial  is  in- 
teresting, and  the  arguments  of  Hoar  for  the  prosecution,  and 
Cai'penter  and  Black  for  the  defense,  are  masterpieces  of  forensic 
eloquence.*" 

gi)l.    Persons  Subject  to  Iiniicai-linioiit. 

The  Constitution  says :  "  Tiie  President,  V'ice-l'resident,  mid 
all  civil  ollicers  of  the  United  States  shidl  be  removed  from  Ollico 
on  Iiniiea<!]mient  for  and  Conviciiou  of  Treason,  Dribcry  <ir  other 
liigli  Crimes  and  Misdemeanora."  i  Upon  lilount's  inipeachnuuit 
it  was  cl:unic(l  by  the  manageis  from  the  House  of  Kcprcscnt;ilivcs 
that  these  words  were  not  restiictive  of  the  power  of  ini[)('nrli- 
ment  conferred  in  the  preceding  article;  and  that  private  cilizciis 
or  even  State  oHicers  might  be  impeached  ^  as  in  England,  where 


"  Procpcdiiit;^  of  tlio  Soimtii  BiUiiiR 
for  tlio  tiiiil  of  William  AV.  JiclliiKip, 
Late  Sooi'otary  of  AVi;r,  on  tlio  Artldos 
of  Iiiipcapliiiiout  cxliililtod  by  tho 
H0118O  of  Hi'iirOHCiitalivcs.  -14tli  Con- 
grops,  IstScnsioM.  Wii^liiiiKtiiti :  fiov- 
ernmcntPiiiitiMKOnioi',  ls7(i,  pp.  llfiO. 
Tlio  qu  tions  of  law  lU'O  discussed 
injro.  S§  91  il2. 

§  ill.  1  Article  II,  Section  4. 

""Tlie  Coustitution  has  said  who 
Bliall  have  the  power  to  iiiii)oach  and 
who  of  tryiiii;  im|ieachiiieiils.  It  has 
also  limited  the  extent  of  the  punish- 
ment. But  it  has  not  dcseribi-d  the 
I^oisons  wlio  shall  lie  tho  objects  of 
impeachmcnl,  nor  dellncd  the  cases 
(o  whicli  the  leniedy  shall  be  conllnod. 
We  cannot  do  otherwisi",  therefore, 
than  iire-nme,  tliat  upon  tliese  points 
wo  are  designedly  left  to  the  r<  giihi- 
tions  of  tho  common  law.  Sir,  in  the 
very  threshold,  has  not  this  law  fjiven 
us  t!io  foundation  upon  which  we 
stand?  Where  have  we  looked  for 
tho  form  of  the  pleadings,  which  has 
brought  tho  present  (pieslion  before 
tho  Court?    And  if,  sir,  a  question  of 


evidence  should   arise,   os  happened 
upon  a  former  occasion,   shoidd  wo 
hesitate  as  to  tho  law  which  onijht  to 
determine    its    competency?      If   wo 
were  asked,  whether  a  greater  loose- 
ness in    ideadinfjs   on    liepencluncnt 
were  not  allowed,   than   in  suits  at 
law,  we  should  answer  in  the  alllrm:!- 
tive;  and  if  it  were  inquired,  wliellier 
tho  rules  of  evidence  were  more  lax, 
wo  should   answer  in  the  ne^!;!tive; 
and  In  such  opinions,  Itrust,  we  should 
not   be  contradicted   by  the  learmd 
counsel  of  tho  party  impeached,  and 
yet,    sir,    tho    opiidons    eoidd    alone  . 
be  collected   fnirn  the  rules  of   the 
common  law.     It  is,  perhaps,  wurtliy  • 
of  oliservalion,  tluit  even  as  it  rej;.irils  , 
those  persons  who  are  clearly  liable  , 
to  impeachment,    there   is   no   direi't  j 
provision,  which  suli,i''cts  tl.cni  le  U. 
Thus   In   the   -itli    seition   of   lli(^  %\  i 
article,  which  has  lli(>  closest  connee- 
tion  with  the  jioint,  it  luis  not  said 
that    the    President,    Vice-Piesi.lcut, 
and   civil  (jfllcers,   shall   be  li.'dile  to 
impeachment ;     but    taking    it    for 
granted  that  they  were  liablo  at  com- 


§  «!•] 


PEK80NS   SUBJECT  TO   IMPEACHMENT. 


667 


the  only  limitation  is  tliat  a  commoner  cannot  be  impeached  for  a 


iiicn  law,  lias  introducoU  nil  itiipcni- 
t  ive  provision  as  to  their  rotnovai  upon 
loiiviction  of  oortaiu  crimes.  Tlin 
(|ii('8tion,  tliereforo,  is,  wliat  poraons, 
for  wliat  ofTencres,  are  lial)le  to  l)e 
iiupi'aelii'd  at  common  law?  And  I 
am  coiilldcnt,  as  to  this  point,  tlio 
I'liniiii^  ami  iilieralily  of  tlio  co\insel 
will  save  nio  tlie  troiit)lo  of  argument, 
or  ilio  citation  of  nutlioritics,  to  <'f- 
liihlisli  the  position,  that  the  question 
of  impeachaliility  is  a,  question  of  dis- 
iri>tion  only,  with  the  Commons  and 
I.onls.  Not  that  1  .iiean  to  insist, 
ilial  the  Lords  have  lopil  cognizance 
ol'  a  char|.;c  of  a  capital  crinn-  against 
a  i-ommoncr,  imt  simply  tiial  all  the 
Kiii'^'rt  Bulijects  arc!  lialih?  to  lio  im- 
pcaclicd  liy  the  Commons,  and  tried 
hy  the  Lords,  upon  charKi's  of  hluli 
crimes  and  misdemeanors.  And  this, 
fir,  (iocs  to  tlie  e.xlont  of  the  articles 
cxhiliiled  against  William  Blount. 
And  for  my  part,  I  do  not  conceive  it 
would  l;ave  been  sound  policy  to  have 
laiil  any  restriction  as  to  person  upon 
the  power  of  iiupeai'hintj.  Il  is  not 
iliilicnll  to  ima;?in<'  a  case  in  which 
tl'.e  jiunishment  it  imposes  would  ho 
llnMnost  suitable  which  could  be  in- 
llii-li'd.  Let  us  suppose,  tlial  a  citizen 
!iol  in  onic(>,  but  possessed  of  ex- 
trusive! inllu(>nce,  arising  from  popu- 
liir  arts,  fi-cun  wi-allh  or  connec- 
tions, aelinited  by  stron«  amiiition 
and  aspirinf?  to  the  first  jilace  in  the 
•  loveriiment,  should  conspire  with 
tlie  disafTected  of  uir  own  country,  or 
with  forei;;n  Inlriijuers,  by  ill;  gal 
iiilillce,  corriiplioii  or  foiee,  |o  ]ilace 
himself  iu  the  ]'rc>  idential  Chair.  I 
would  ask  in  such  a  case,  what  puidsli- 
ment  would  be  miu'e  likely  tt>  <|ucll 
a  spirit  of  that  ilescriplion,  than 
alisohilo  and  perpetual  discpialilica- 
tlcm  f<,r  any  olTlee  of  trust,  honour  or 
proUt  under   Llio    Cioverumeul ;    and 


wh;it  punisliuK'nt  could  bo  better 
calculated  to  secure  the  pi'ac^e  and 
safety  of  the  Stale  from  tlu'  repetition 
of  the  same  offenceV"  (llananer 
IJayard  in  lilount's  Impeachment, 
Wliarton's  Slal(!  Trials,  pp.  20.">,  'Zm.) 

"  Nor  can  I  conci'ive  how  the  uni- 
versal e.\teiit(.f  Iheiiowerof  impeach- 
m<'nt,  contended  for  by  my  lionorablo 
colleague,  is  contrary  to  tlie  spirit, 
tho  objects,  or  the  policy,  either  of 
the  law  of  impeachment,  or  of  the 
Feder.il  CNuistilulion.  The  use  of 
the  law  ol  impeachment  is  to  punish 
and  thereby  prevent  oDV  nces  which 
are  of  such  a  nature  as  to  cnd.inKor 
tho  s.afcly,  or  injure  the  intcrists  of 
the  Ilnilcd  Stales:  and  the  object  of 
the  Federal  ('oiistilulion  was  to  |iro- 
vido  for  tiiai  safely,  and  to  jirolect 
those  inlerests.  Such  ofl'cnces  iiuiy 
1)0  committed,  as  well  by  persons  out 
of  ollli'c,  as  by  person.-?  in  olllco;  and 
allhouKh  the  puidshmenl  can  p)  no 
furllicr  than  removal  and  dist|ualill- 
cation,  wliieh  reslricllon  wa>,  perhaps, 
wisely  inl  reduced  iu  order  to  previMit 
those  abusi's  of  the  power  of  impeach- 
ment, whiih  had  taken  ]ilace  in  an- 
other country,  yet  it  may  oft' n  be 
exircmi'ly  import a'lt  to  |>revenl,  such 
ofl'diders  from  ficltinK  luti)  olTlce,  as 
well  as  to  rcniokc  them  .en  they 
are  ill;  anil  it  is,  therefore,  us  ccui- 
sislent  with  the  policy  of  impeach- 
iiHMits,  and  th('  lu'inciples  of  the  Fed- 
eral compai't,  to  punish  them  in  tho 
one  ease  as  in  the  olher.  This  doc- 
trine, it  is  furl  her  said,  would  enable 
Coicjrcss  to  interfere  with  the  Stale 
governments,  by  i,mpeacliiii,i!  Ilu'ironi- 
cers.  Ibil,  t  Ihis(>  iuipcachmcnis  must 
be  founded  o,  offi'iices  npiinst  the 
t'niled  SbMie.-*;  and  if  sudi  oll'enccs 
were  committed  by  Stale  olllcers,  I 
cannot  see  why  Ihcy  iui)ihl  not  to  bo 
imnibhod,  as  well  as  in  any  olhur  uasu. 


508 


IMPEACHMENTS. 


[chap.  xiir. 


(capital  offense.^     This  contention  was  easily  refuted  1)}'  tlie  coun- 
sel   for    tlic   defendant^    and    rejected   by   the   judgment  of   the 


Siuvly  till  y  wi)iil<l  not  lie  less  dantri'i'- 
ous.  It  llic  convii'tioiiH  in  HUi'li  ini- 
ppiiclinicnts.  ciHilil  ri'iMOVo  nn'ii  fioin 
Stnto  oflh  i-s,  or  disqiuilify  thorn  for 
holilitii,'  >-nih  offices,  tlicro  iiiijjht  lio 
soiiu'tliiiig  in  till)  olijcction  ;  lint  that 
conld  not  l)i>  Hits  ciisc,  hIiico  tlio  re- 
moval and  disqnalilleation  apply  to 
olllees  under  Iho  peneral  (government 
alone."  (Mannjjer  Harper  in  Bloiint'a 
InipeailinicMt,  AVliarton's  State  Trials, 
pp.  ;i()0  301.) 

8  2  Woiidi'son'.s  Lncture.s,  p.  (iOl.  Tlie 
same  rule  jn-evails  in  I'rance  (Lni  Con- 
stitulininiejle  siir  los  Hapiiort.s  dfs  Pon- 
voirs  I'ublirs,  lCi-'28  .Tuillet  1H75,  Art. 
12):  "I.t  Presidfiit  d(?  !a  Rr|mbllque 
ne  pent  Ptre  mis  en  accii.sation  (pie  par  la 
Chanibro  des  deputes  et  ne  pent  etre 
juge  que  par  lu  Si'nat.  Les  Mini.slres 
peuvent  etre  mis  en  aecUBatlon  par  la 
Chanilire  des  deputes  pour  crimes  com- 
mis  dans  I'exeivieu  de  leurs  {unctions. 
En  ce  cas,  ils  sunt  jug'^.s  par  le  Seiiat. 
Le  Senat  pent  etre  const  itiie  en  cour 
de  justice  par  un  decret  du  President 
de  la  lifpuliliqiic,  rendue  en  cunseil  des 
miiiisties,  pour  juger  toulc  iiersomio 
pr6venue  d'atteniat  coniniis  contre  lo 
sureto  de  I'Ktal.  Si  I'instruclion  est 
commcnci'o  par  la  justice  ordinaire,  le 
dCcret  de  cunvoctitioii  du  Sfinat  pent 
etre  rendu  jusquil  I'arret  de  renvoi. 
Une  loi  delcrniinera  le  mode  de  pro- 
ceiler  pour  r.iccusalinn,  I'iiistruction  et 
le  jugenieiit."  Loi  relative  a  I'OrKaniza- 
tlon  des  Pouvoirs  Publics,  2ri-'_'S,  I'l'.y- 
rier  1875,  Art.  0:  .  .  .  "  Le  Pre-iident  de 
la  Kepublicpu)  n'est  responsable  que 
dans  le  casileliaute  tiviliison."  See  Uiir. 
gess,  Political  .^cieiuvLi  and  roiiiparativo 
Constitutional  Law,  vol.  i,  Aiipcndix,pp. 
,3;)(i-.'!;;T,  .T!1  ;  ibid.,  vol.  ii,  pp.  2'.I1-20l!, 
■<!00-304;  Lcbon,  Das  Staaisrcclit  der 
Franzosi.scliin  Hepnblik,  §  65. 

*  "  Independent  of  all  precedent  and 
authority,  the  distinction  was  founded 


upon  the  very  nature  of  a  free  govern- 
ment. The  Legislature  is,  in  tlieoiy, 
the  people :  they  do  not  themselves  as- 
somlilo,  but  they  depute  a  few  to  act 
for  them  ;  and  the  laws  which  are  tliiis 
made  are  the  expressions  of  the  will  of 
the  people.  Over  their  Hepresenta- 
t  ives,  the  iieople  have  a  complete  control. 
and  if  one  set  transgress  they  canappoiiil 
another  .set,  whi>  can  rescind  and  annul 
all  previous  bad  laws,  liut  the  power 
of  the  people  is  only  to  make  the  laws; 
they  have  nothing  to  do  witli  ej'ccutiny 
them;  they  have  nothing  lo  do  wiili 
eJCpininiUnij  them  ;  and  hence  arises  tlie 
diver-ily  in  the  modes  of  rcinedyiiig 
any  grievance,  which  they  may  suffir 
from  the  conduct  of  their  Uepicscnta- 
tives  or  agents.  It  a  Lej;is!ator  acts 
wrong,  ho  may  be  expelled  before  tlie 
term  for  which  he  was  chosen  has  ex- 
pired ;  ho  may  be  rejected  at  the  la  xt 
periodical  election;  and  the  laws  wliicli 
he  has  satietioned  may  be  repealed  liy  ii 
new  representation.  Hut  if  an  Ivxetii- 
tive  or  a  .ludicial  magistrate  acts  wrong, 
the  people  lia\e  no  inimediate  power  to 
correct;  iirosecntlon  and  iinpeachniciit 
are  the  only  remedies  for  the  evil. 
Then,  it  is  manifest,  tli.it  by  the  power 
of  iinpeaclimcnt,  the  people  did  not 
mean  to  guard  against  thein.selves,  but 
iigainst  tlieir  agents ;  they  did  not  mean 
to  exclude  themselves  from  the  right  oi 
re-appointing,  or  pardoning;  but  lo 
restrain  the  Executive  magistrate  Iruiii 
doing  cither  with  respect  to  olliceis, 
whose  offices  were  belli  independent  of 
popular  choice.  The  subject  is  made 
more  plain,  by  two  considerations:  - 
1st,  tliat  ulthough  eitlier  House  may 
ex|iel  a  menilier,  they  cannot  (on  tlio 
lirinciples  of  the  Constituiion,  witliout 
any  expre-»  |iroliiliitioii)  expel  liiiu 
twice  for  the  same  cau.se:  2i\,  that  the 
President  is  not  empowered  to  pardou 
in  cases  of  impeachment.    In  the  case 


§  '-H-] 


PEK80SS    SUBJECT   TO    IJIPEACHMENT. 


569 


Si'iiiite.^  The  maxim  of  construction  tliat  tlio  expression  of  ono 
liiiiii,'  is  tilt;  exclusion  of  iinotiier,  clearly  controls.  'J'he  ("onstitu- 
lidU  is  a  [rrunt  of  limited  powers  for  Federal  purposes  only.  Tiie 
(il)jct't  of  the  <,nant  of  the  jxtwer  of  inii)eachnient  was  to  free  the 
iiininionwealth  from  the  danj^rcr  caused  liy  the  retention  of  an 
unworthy  public  servant.     A  further  extension  might  be  danger- 


nf  expulsion,  the  member  ia  seijt  to  the 
podplc,  but  if  tliey  clioose  to  return  him 
asjiiiii,  lie  has  a  perfect  title  to  his  seat. 
Ill  the  case  of  an  iiupeaelniieiit,  the  de- 
limiuent  oflicer  is  disiiiissied ;  on  the 
tri'inral  power  of  the  Executive  lio 
iiiit;lit  be  reaippoiiited ;  but  to  guard 
aKuiiist  the  abuse  of  tlial  power,  tlie 
CiMisiitulion  superadds  a  sentence  of 
perpetual  distpialificalion."  (A.  .J.  Dal- 
las, respondent's  counsel  In  Blount's 
liiipi  aclimeiit,  AVharton's  State   Trials, 

p  .;>^i.) 

"  That  the  Constitution  of  the  United 
Slates,  limited  in  its  Legislative  and 
llxeeutivo  jiowi'rs  tocerlain  enunienited 
olijieis,  as  well  as  in  lis  judiciary,  where 
ajiny  constitutes  a  jiarl  of  il-i  aduiinis- 
tiation  of  jiistiee,  shoulil  lie  left  without 
buiiiids  ill  ihi^  liazardous  iinu'eeding  by 
iiMpeachnient  only,  is  grost-ly  improb- 
able, and,  I  trust,  unfounded.  Con- 
trary, I  am  sure,  to  the  spirit,  and,  I 
lliink,  also  to  the  letter  of  'he  Consti- 
tiiliijii.  Let  us  trace  the  operation  of 
this  principle.  A  Slate  oIKeer  is  liable 
to  inipeiichnient,  in  the  Senate  of  the 
St.ile.  Is  he  liable  at  the  same  time, 
ami  for  the  same  offence,  to  inipcach- 
iiuiit  in  the  Senate  of  the  United 
States!  Will  an  ae(|uiital  In  one  be  a 
bar  in  the  other?  In  disputes  between 
the  powers  and  relative  jurisdiclions  of 
Slate  and  United  Slates,  tla^  same  rea- 
8II11S  may  Indiieo  an  aecpiiital  in  the 
f'Tiner  and  a  condeinnation  in  tin'  lat- 
ter. Would  not  tills  oi'easion  a  liabel, 
a  confusion  of  coiistiiulions,  a  nioiisler 
of  jiMisprndence  ?  In  jurisdictions  not 
emanating  from  llie  same  aiithorily, 
where  a  party  had  not  his  elioice,  the 


citizen  is  liable,  it  Is  said,  to  successive 
trials,  and  contradictory  determina- 
thms,  for  one  ol'feiiee.  'I'lie  distant  in- 
habitant is  amenable,  we  are  told,  at 
the  bar  of  this  Court,  for  every  siHcies 
of  offence,  at  tlie  distance  of  a  hundred 
or  IV  thousand  miles  from  liis  vicinage, 
to  wlioin  the  prosecution  itself  would 
be  ruin,  and  here  liiiisl  submit  to  the 
awful  (li.vntioii  of  the  Senate  whether 
lie  shall  retain  his  honour  or  be  doomed 
to  disgrace,  recorded  ami  transmitted  to 
posterity,  u|)oii  your  arciiives,  art  un- 
worthy the  oHiees  <if  Goveiiimeiit,  and, 
in  part,  nduced  from  the  rank  of  a  cit- 
izen. I  liave  Slid,  sir,  to  tlio  discretion 
of  the  Senate  ;  because  it  is  iierfectly 
well  known  that,  not  only  in  tlie  delinn- 
aiion  of  tlie  offence  by  the  prosecutors, 
but  also  in  tlie  coiistrnetion  of  it  by  the 
judge,  a  Court  of  Inipeaeliini  nl  is  not 
tied  diiwn  by  such  strict  rules  as.  in 
coniniiiii  cases,  before  acouii  and  jury, 
give  personal  security.  Imiimvideiit 
citizens:  'I'lii'y  have  taken  care  that 
they  sliall  ni.t  be  subjected  to  a  fine  of 
one  shilling,  or  to  impri.->oiiiiient  of  their 
bodicii  for  one  hour,  but,  in  conse- 
quence of  a  veiHlicl  of  the  neighbor- 
hood; at  the  same  time  that  it  Is  sug- 
gested, till  ir  hiMionr  they  have  not  se- 
ciire<l  with  I'lpial  precaution.  The  sug- 
gi'stioii  I  undertake  tosae,is  unfounded. 
The  mistake  is  not  in  the  peoiile,  but  in 
these  who  impute  to  tlii'in  so  great  uii 
iiiailvertency."  (.lared  Iiigi  rsoll,  coun- 
sel for  tlie  respondent  in  liioum's  Im- 
peaehmeiit,  Wliarlon's  State  Tr'als,  pp. 
■isT-'iss.) 

''  Hhninl's     Impeaeliinent,     Whar- 
ton's Slate  Trials,  ji.  ;110. 


570 


IMrEACllMENTS. 


[CIIAI-.  XIII. 


Oil:;,  WDuLl  certainly  ha  oppressive,  and  could  sciircely  eoiieeiviililv 
be  of  use." 

Only  the  President,  Vice-President  and  "civil  OlHcers  of  tlir 
United  States,"  then,  can  be  impeached.  Wiio  are  civil  oliiiia-s 
of  the  United  States?  The  word  "civil"  is  used  in  conlradis- 
tinetion  to  military.''  Consequently,  officers  of  the  army  and  ii  ivy 
are  exempt  from  imjjeachnicnt. 

"Tlio  reason  for  excepting  military  and  naval  odlcers  is,  that  tlu-y 
are  siiliji'ct  to  trial  and  puiiislitncnt  aecordinjj;  to  a  peculiar  inilitaiy 
co(U',  the  laws,  rules,  and  usages  of  war.  The  very  nature  and  etllciciioy 
of  niilitai'y  duties  and  discipline  require  this  sinnmary  and  exehmive 
jurisdiction;  and  the  prouq)titude  of  its  operations  is  not  only  hettcr 
suited  to  the  notions  of  military  men,  hut  thej'  deem  their  houca'  and 
vaeir  reputation  more  safe  in  the  hands  of  their  hrother  ollicers  than  in 
any  merely  civil  tribunal.  Indeed,  in  military  and  naval  atfairs  it  is 
quite  cloiu-  that  the  Senate  could  scarcely  possess  competent  knowledge 
or  exi)erience  to  decide  upon  the  acts  of  nnlitary  men.  So  miieli  aie 
these  acta  to  be  governed  by  mere  usage  and  custom,  by  military  disei- 
pliuo  and  military  discretion,  that  the  Constitution  has  wisely  cominittcil 
the  whole  trust  to  the  decision  of  courts-martial." ' 


"  Bayard,  iu  Blount's Impearhmont, 
Wharton's  Slate  Trials,  pp.  273-'277 ; 
Harper,  ibid.,  ]ip.  2H7  21)2. 

'  Hiirperin  Bli)unt's  Impoacliment, 
WiiarloM's  Statu  Trials,  ;)l)2,  305; 
Im^,'oivo11,  iliiil.,  p.  2'.t0;  Story  on  tlio 
Constitution.  §  791;  Cf.,  Blaekslone, 
vol.  i,  pp.  3:i2,  3',)fi,  408,  417. 

*  Slory  on  the  ConstiUition,  §  792; 
cltlu^  Eawlo  on  tlic^  ConsiitiUion, 
cli.  xxi.  Mr.  Williiini  Lawrence  of 
Ohio,  liowovi'r,  said  in  lii.s  liricf  for 
the  House  (  f  llopresenlalivcs  upon 
Johns  in's  In  pcii-hinent  (vol.  i,  p.  121, 
Hole):  "In  Eriuiand,  naval  an<l  niili- 
lury  oillrers  are  irnpcarlialile.  If  a 
militaiy  or  naval  ofllrer  here  fihould 
conspire  with  tin'  rrcsident  to  over- 
throw ConKress,  (he  inipeaehnient  of 
both  woulil  he  a  necessary  protection, 
which  il  may  be  donlited  If  the  Oou- 
stitution  intend(Ki  to  surrender.  In 
8ueh  ease  a  eourt-niartial  would  not. 


against  tlio   Tresident's  will,  rcniovo 
from  offlce." 

In  Hclknap's  Iinpom^hraent  Trinl, 
Manafjer  .leaks  said  (pp.  172  1711  ; 
"  Now,  why  should  It  be  that  a  civil 
olllcer  shoulil  be  Impeachable  ratlicr 
than  a  nnlitary  olTlior'?  Is  tho  onp 
nioro  (lant?<"roii»  than  tho  otlicr'i' 
Wore  th(»  frainers  of  the  Constitulimi 
more  careful  to  Kuard  oiu>  than  tlio 
other'?  No.  They  simply  took  lliin 
into  coMsideratloii ;  This  provision 
simply  meant  that  it  was  imperative 
that  on  Impeachment  for  certain 
crimes  of  a  hij;h  grade  civil  ollicci's 
shoulil  bo  riMuovcd.  Why  not  military 
ollh'ors'?  Because  military  talciil  is 
of  a  peculiar  cliaracler.  One  man  in 
an  army  may  not  represent  oni;  ono 
man,  but  ids  name  may  be  (jood  for 
a  thousand,  leu  thousand  or  niore. 
Suppose  you  take  tho  ease  of  the  Uuka 
of  Marlborough  —  a  man   uoled   per- 


r-"-] 


I'KUSdNS    SlIItJKCT    TO    nU'KACll.M  KNT. 


671 


'riio  ineuiiiiL,' iif  the  iilir.ise,  '•  oflicfi'  of  lliti  raitcil  Slufrs,"  is 
iii'iii'  (loulittiil.  Tlic  ([iKj^tioii  w;is  (lisfiissiMl  witli  yrcil  ;'.l)ili;\  oil 
the  ti'iiil  of  the  iin|ic  ichiuful  of  Senator  Willi  nil  lUouiil,  for  ivy- 
iU'j;  to  uorrii[)t  ii;i  Indi  in  iii^eiit  ainl  iut^'ipivlcr,  ami  indiici.'  him  to 
alienate  the  Indians  from  the  United  Stales."  Pending  the  ini- 
]it;aeliinent,  Hloiint  was  expellcjd  by  the  Senate  for  the  same 
oifuiise.  His  plea  that  the  Senate  had  no  jurisdietiou,  wliieh  was 
tiled  suhseiinentl)-  to  his  exjiulsion,  was  sust.iined  liv  a  vote  of  fonr- 
tifii  to  eleven  and  the  impeaehnunit  dismissed. '"  As  is  s;iid  by 
Wharton,  '-in  a  legal  point  of  view,  all  that  this  ease  deeidis  is, 
thai  a  Senator  of  the  I'nited  States  who  his  boen  exiielled  from 
his  seat  is  not  after  siieli  expulsion  subject  to  impcaehnient." '' 


liMjiB  for  his  avarice  —  n  iiinii  wlio,  if 
111!  liad  liccn  lU'osocutcil  for  oflliial 
miilin-actico  midei'  our  Constiluliim, 
would  li.'ivo  bci'ii  reiiiDvcil  fi'Diii  ()!Vkc> 
liail  tills  piiwin-  Ik'oii  cxtonilnl  to 
iiiilllary  ofllcciH  ns  woll  a.^  civil  ofll- 
I'l'is;  but  to  ri'inovi)  the  Duko  of 
Mailliorough  fnuu  tlio  licail  of  the 
aiMiioH  of  Englaiiil  would  have  liccii 
i'i|iiivaloiit  to  jicUlliig  liiM-  place  as  a 
iiiililary  nation  In  tliu  face  of  tlic 
world.  So  llicro  is  a  reason  why 
military  olTlcers  should  not  be  neces- 
saiily  removed.  You  may  remove 
tlii'ia.  If  tliodemaiids  of  the  lli>|iulilic 
■''Huire  you  should  nunove  them  you 
^liould  do  it,  but  you  are  not  coiii- 
li'llc-d  by  the  Constitution  to  do  it. 
Tli.'l  is  why  it  wa.-i  maih-  applicable 
till  >.  illcers  alone,  and  in  rcfci<>Mcn 
lo  civil  ofllccrs,  we  have  daily  and 
iKc.irly  indications  that  if  the  very 
l"'<i  of  civil  olUcers  were  to  be  re- 
ainvcil,  hlKlio-it  or  hiwest,  al>undance 
of  pco|i|e  would  s;u-iiig  up,  numerous 
as  the  frogs  ol'  Ei^ypl,  fully  competent 
.•Mid  amply  willing  lo  till  the  places. 
Ii  was  rostricteil  as  to  military  ollleers 
hc'causo  of  tlio  character  of  the  duties 
tlicy  have  lo  perform  ;  it  was  r"sl  riclcd 
as  to  naval  ollleers  for  the  same 
icii.son ;  and  it  was  not,  as  I  appre- 
litMid,    for    the    cause    suggcsled    by 


.Tudgc  Slory;  that  there  were  <'oiirls- 
nianial  to  try  their  crimes.  The 
spirit  of  our  institutions  is  that  the 
]ieoplc  shall  at  the  lime  hold  their 
hand  on  every  olTlcer  in  the  United 
States.  As  to  those  that  were  elected 
by  thenisolve.s,  Coiigressnicn,  (hey 
placi'd  it  ill  the  imw,  r  of  Congress  to 
remove  them.  .\s  lo  those  that  re- 
|irescntcd  the  St.itc.-,  they  placed  it 
in  the  ]iov.er  of  those  representing 
the  States  to  remove  them.  That  is, 
they  held  the  powerof  removal  all  the 
time,  directly  or  indirectly,  and  iu- 
triistcd  It  to  no  single  in(li\idiial.  As 
to  tlm  ollleers  of  the  United  Slates, 
who  are  (hose  umler  the  Exei'iitivc, 
(hey  meant  (o  hold  the  same  hand 
upon  (hem,  and  they  did  holil  it. 
They  meant  (hat  the  military,  llie 
maritime,  and  the  civil  aliUe  sliall  be 
subject  to  impeachment  and  trial, 
and  (hat  if  it  is  necessary  this  court 
can  drag  from  his  height  the  military 
hero,  or  may  draw  from  his  depths 
the  depredating  customhouse  ofllcer. 
This  is  the  view  we  tal<e  of  this,  ami 
nothing  more." 

"  lilount'slmpeachmeiit,  Wharton's 
Slate  Trials,  pp.  2m)-:i'Jl ;  Hiipni,  §  90. 

>'  Ibid.,  p.  ;ilfi;  «»;ir(i,  §  ItO. 

"  Ibid.,  p.  317,  nolo. 


IMI'KACIIMK.NTS. 


[CUAI>.  XIll. 


Till'  fad  of  tln!  fxpiilsion,  liowevcr,  |iliiyi'(l  little  p:ii't  in  the  arpu- 
iiK'iit.'^  'I'lio  iiiiiiu  (juustioiis  (lisiMissod  wltu  whether  persons  not 
eivil  ollieers  of  tiie  United  Stites  eoiild  be  iinpeaehed,  whieli  \v;i8 
nccess:i)'ily  ni'<rativeil  by  the  decision  ;  und  whether  ii  senator  is 
snih  an  olliccr.  The  practical  construction  and  the  l)etter  opinion 
since  has  l)ccn  that  neither  a  senator  nor  a  member  of  the  House 
of  ivepi'csentatives  can  be  impeached."*  The  only  remedy  for 
the  niiiconduct  of  a  member  of  either  House  of  Congress  during 
liis  term  of  oilice  is  expulsion  by  his  coUeasrues." 

This  construction  seems  clear  from  the  letter  as  well  as  (lie 
spirit  of  the  Constitution.  In  every  other  instance  b\it  one,  lin! 
full  meaiiint,'  of  wldih  is  doubtful,'''  wberc^  tiie  word  "  olliccr "  is 
used,  the  context  shows  clearly  that  a  nicndicr  of  Conj^rcss  i-;  not 
included.      'J'he  {'resident  — 

"  sh.all  Coniiiiission  all  the  Ollieers  ot  the  Tnitcd  States,'""  '-by  mid 
with  the  Advice  and  Consent  of  the  Sentile  shall  appoint  Aiubassailors, 
other  public  .Miiiislers  and  Consuls,  Jiidjies  of  the  siipreuie  Comt, 
and  all  oilier  Ollicers  of  the  I'liited  States,  who.se  Appointments 
ore  not  lieivin  otherwise  provided  for,  and  which  shall  be  estali- 
lislied  b}'  L;iw."  "  "  \o  .Si'iialor  or  Hepi'i'scutative  shall  (hiring  the 
Time  for  which  lie  was  elected  be  appointed  to  any  civil  Ollico  uiidi  r  the 
Autlioiity  of  the  liiited  States,  which  shall  h;ive  bi'cii  created  or  the 
Einohinients  whereof  sh;dl  liave  been  inci'i'asi'd  diiiiiii;  sucli  time,  and 
no  I'erson  lioldiii;j;  any  ollicc  iind"!-  tlie  I'liited  States,  shall  be  a  Member 
of  cither  House  dnriiiij:  his  Coiitiiniaiice  in  Ollloe.'''  "  .\o  Senator  or 
Representative  or  I'eisini  lioUlin^  an  Olllce  of  Trust  or  I'rolit  under  the 
United  States,  sliall  be  appointed  an  Kleetor." ''•" 

When  wc  consider  the  object  of  imiicai'hment,  the  meanincf  is 
still  more  clear.  The  remedy  was  provided  as  a  check  upon  the 
President  by  the  removal  of  an  unworthy  olliccr  and  tlu^  prevention 
of  his   reap[)ointmeiit  to  any  ollici'.      This  ajipcars  by  the  punish- 


r-!S(M>  Dallas,  ibid.,  p.  '2S1;  Inijcr- 
Boll,  ilild.,  ]).  2%. 

"  Uawlo  cii  tho  I'oiislltiilioii,  p. 
203;  Story  on  IlK'Con.'ililuliiai,  !;^  T'a.'i, 
V!).");  ManiiRcr  Gi'oikc  Fiisliii^  Hoar  In 
Rclknai)'s  ('as(>,  p.  1H(!;  ((uiiti'd,  infra, 
noto  20. 

n  Soo  tho  si;.  Jon  on  Kxpulsion, 
injra. 


'■'  Article  I,  Section  !).  See  Iiiu'er- 
Holl  in  lilonnt's  laipciicliincnt,  Wliiir- 
( oil's  Stale  Trials,  p.  2'.ir),  21)1') ;  (juotcd, 
infra,  S  !)2,  note  i:i. 

'"  ArticloII,  Sections. 

17  Arliclii  II,  Section  2. 

"  Article  I,  Sc'tlon  fi. 

'»  Article  II,  Section  1. 


§»^-] 


PERSONS    SUB.IECT   TO   IMPEACHiMENT. 


578 


iiu'iit,  which  is  limited  to  that  anil  goes  no  further.  Inasmni'h  :is 
till)  President  and  Vice-President  were  not  chosen  hy  tlie  peojiie, 
hut  hy  tlie  Electoral  C'ollege,  a  iirovislon  to  prevent  their  suhst'(juent 
('ligil)ility  to  office  seemed  also  expedient.  For  tlie  removal  of  an 
unworthy  senator  or  representative,  the  jiower  of  expulsion  was 
coiift'rred  upon  their  respective  iiouses.  It  was  not  intended  to 
allow  eitlier  iiouse  to  regulate  the  memberehip  of  the  oiher.  Nor 
(lid  the  people  intend  impeachment  as  a  check  uixm  thcinsclvf's.^" 


™  A.  J.  Diilliis,  ros|ioii(lc'nt's  coiin- 
fii'liii  lilDunl.s  Trial,  Wlmrlon's  Stall- 
Tiialfri,  ]).  281.  Si'o  iilso  iliiil.,  j).  278; 
.larcil  Iiij^iTsoll,  rt'spomlcul's  coiinscl, 
il>iil.,  p.  2'J'i  and  pnHniin.  "  Ih  it  to  l>o 
Idlrratcd  — I'an  two  Inaiiclu's  of  n  Icfj- 
isliilivo  body  dwell  ti>K<'llHT  iiudiT 
tlio  Coiislitiitioii  ill  poaco  it  oiio  of 
Iheiii  h;iH  tlio  (•onstilutioiial  pn-roi^a- 
tivi'  to  lay  its  hand  upon  ii  inonilicr  of 
tin)  oilier  and  force  lliat  liody  to 
wlileli  ho  lieloni^s  to  put  liiiii  on  trial 
tor  an  nliurte  of  that  very  le^^islalivo 
ollico  to  which  he  wa-s  elecledV" 
{XIanat;er  George  Frirtliii!  Hoar  in  Bel- 
knap's Casn,  p.  180.) 

"The  Senator  is  not  an  ofllcer  of 
the  United  Slates;  the  Coii,i;ros.siiiaii 
is  not  an  oOicer  of  tlio  United  Stales. 
Wliy?  Ill  the  formation  of  onrdovern- 
iiient  three  elements  entered.  Tlioro 
worn  tlio  jieople,  tl'o  States,  and  the 
<;eneral  (Joveinment.  Tho people  aro 
represented  tiy  the  CoiiHressinon ; 
lliey  receive  their  commissions  di- 
rcclly  from  th(!  i)oople.  Tlioy  aro  tJio 
(illiccrs  of  tho  people  of  n  State,  and 
not  of  the  United  States.  They  may 
do  olllcial  duty  with  reference  to  tho 
Uniled  States,  na  some  otiier  State 
ofllcers  do  now;  but  they  are  still 
ofllcors  of  tho  Slate.  Tho  Senators 
re]ireseiil  tho  sovereignty  of  tho 
several  Slates;  tliey  represent  tlio 
Slates,  and  as  such  aro  oHlcers  of  tho 
States,  and  not  of  the  XInitod  States. 
So  that  a  Senator  is  not  impoacliablo, 
iu  that  ho   is  not  an   oiiieer  of  tho 


United  Stales.  A  ronf;rpssman  is  not 
impejiclialile,  in  that  lie  is  not  an 
omi'er  of  tho  United  Slates,  but  an 
olllcer  of  tho  people  of  a  Slate.  It 
leaves  ii,  then,  that  tlioso  coKnizablo 
before  this  Court  are  only  tiioso  ho 
aro  tho  Government  ollicers  of  tho 
United  S'.ates;  who  aro  ollicers  allUo 
for  every  Slate;  wlio  receive  their 
powers  alilio  from  every  State,  ilirectly 
or  indirecUy,  wlio  aro  commissioii'd 
by  the  people  of  all  tlio  States,  or  who 
aro  eomniis^  lolled  by  some  jii-rs'  u  re- 
presenting llii>  |ieo|ileof  all  tlie  States. 
So  tiiat  the  onicc  rs  of  the  United 
States  are  llioso  iiicliided  in  t!in  execu- 
tive departiiKMit  of  the  Government, 
and  every  olllcor  of  that  exeeutlvo  do- 
liartmciit  wo  c  onceive  to  bo  iniiieai'h- 
ablo  before  tliis  trilmnal."  (Jlar.aj^er 
Geor^je  A.  Jenlcs  in  ]icll<iiai>'.s  Case, 
I>.  172.)  Si'o,  however,  tlie  very  able 
arnumoi'ts  of  l!,;y,ird  ami  Harper  to 
tho  contrary,  in  ISIonnt's  (!:ise,  Whar- 
ton's State  Trials  (|>p.  'iW  272,  302- 
311).  Ill  the  conventions  wliicli  rati- 
fied the  Coiislitiiliou,  General  Cliaiies 
Cotesworth  Pinckney  ntid  Governor 
Randolph,  who  were  aclivo  members 
of  llio  Federal  Convention,  siioki*  as  if 
a  senator  could  be  impeached  (Kliiot's 
Debates,  2d  cd.,  vol.  iv,  jip.  211:) -2G5. 
See  also  ibid.,  vol.  ill,  ji.  202.  Seo  also 
ibid.,  vol.  iil,  p.  402).  Tlie  Speaker  of 
the  House  cannot  bo  inipeaehod.  In 
re  Speakership  of  the  House  of  Eepre- 
seutativos,  15  Col.,  620. 


674 


IMl'EACIiMENTS. 


[CIIAI'.  XIU. 


g  03.    IiupeacliiiKMit  nftcr  Kxpiratlon  of  Official  Term. 

A  more  difficult  question  is  still  uiideciiied.  Can  an  ollicur  of 
tiic  United  States  he  inipeaelied  after  lie  is  out  of  office  for  his  acts 
wliile  in  office?  Tiie  point  was  tiiorou^ddy  discussed  in  the  case 
of  William  W.  Helknap,  wlio  was  impeached  in  1870  for  receiviii;^ 
bribes  while  Secretary  of  War.  On  ^larch  1st,  1870,  he  was  in- 
formed hy  the  Chairman  of  the  Committee  of  the  House  on  the 
exi)i:nditures  <if  the  War  Department,  which  was  then  conductin<r 
an  investij^ation,  tiiat  he  would  l)e  impeached  unless  he  rcsipfiii'd 
before  the  nu'etinj^  of  the  House  at  noon  on  the  following  duy. 
At  about  ton  o'clock  in  the  niorinng  of  March  2d  he  prcsciiti'd 
liis  resignation  to  President  (Jrant,  who  accejited  it.  At  elcvfu 
o'clock  he  notilied  the  connnittce  of  his  resignation.  Later  in  the 
day  the  House  of  Kepresentativcs  resolved  tliat  he  be  impcaclii-il. 
A  majority  of  the  Senate  upon  his  trial  oveiTulcd  his  plea  to  tlie 
jurisdiction,  and  held  that  he  was  subject  to  impeachment.  Tliis 
question  was  decided  hy  a  vote  of  thirty-seven  to  twenty-nine. 
Upon  the  linal  vote  as  to  his  conviction  of  the  charges,  thii  ty-six 
senators  voted  for,  and  twenty-five  against  the  conviction,  and  lie 
wiis  consequently  acquitted  for  want  of  a  condenniation  by  two- 
thirds  of  the  Senate.  But  three  sciiatoi-s  voted  for  his  a(;(]uiltiil 
upon  the  express  ground  that  the  charges  were  not  proven,' 
Nearly  all  the  rest  assigned  as  reasons  that  the}'  believed  the 
Senate  had  no  jurisdiction  ;  that  upon  the  linal  vote  they  were 
judges  of  both  the  law  and  the  fact;  and  that  consequently  tliey 
could  not  conscientiously  vote  for  his  conviction  in  a  case  wliitli 
they  thought  they  had  no  right  to  decide. 

The  arguments  in  support  of  the  jurisdiction  to  impeach  an 
officer  after  lie  is  out  of  office  for  his  acts  while  in  office  were  siilt- 
staiitially  as  follows  :  The  grant  of  the  power  of  impeachment,  in 
the  first  article  of  the  Constitiition,^  is  absolute  and  unlimited  hy 
its  terms.  Consecjuently,  the  power  of  impeachment  here  is  as  ex- 
tensive as  in  England.     The  provision  in  the  second  article  that 


§92.  1  SenatoraORlesby,  Patterson,      no  ronsim  for  his  vole.     This  eaue  is 
and  Wright.     Senator  Conover  gave      also  (losorlbod  supra,  {j  90. 

••'  Article  I,  Sections  2  and  3. 


V-^-^-] 


LIABILITY   OF    FORMlOi    OI'IICKIIS. 


57S. 


'•  Till!  President,  Vice-Pi-esitlent,  and  all  Civil  OfUoero  of  tlie  Luitod 
Status,  hIimII  be  removed  from  Olllce  on  Iinpeueliiiieut  for,  and  C'ouvic- 
tion  of  Treason,  Bribery,  or  other  High  (.Jriines  and  Misdenieauors," 
is  not  ii  liinitiitiou  upon  the  previous  provision  for  impeachment,  Imt 
merely  ii  direction  that  in  case  of  the  impeachment  of  the  President, 
Vice-1'residcnt,  or  civil  ofiii^ers  of  the  United  States,  the  defend- 
ant, on  conviction  of  the  offenses  named,  must  be  removed  from 
ollice ;  whereas,  in  other  cases,  the  Senate  may  impose  a  less  pen- 
alty than  removal  from  ollice,  such  as  censure  or  susi)ension  for  a 
term  of  years.^ 

Tiiis  argument  proves  too  much  ;  since,  if  the  power  of  impeach- 
ment under  the  Constitution  is  co-extensive  with  that  in  England, 
private  citizens  who  have  never  held  office  may  be  impeached,  as 
was  Saclieverell,''  and  so  may  senators  and  representatives.  Hlount's 
case  and  the  practical  construction  since  have  settled  the  rule  to 
the  contrar}'.* 

Tiie  power  of  impeachment  is  granted  for  the  public  protection 
in  order  to  not  only  remove,  but  perpetually  discjualify  for  ollice 
a  jjcrson  who  has  shown  himself  dangerous  to  the  connnonwealth 
by  his  oilieial  acts.  The  object  of  this  salutary  constitutional  pro- 
vision would  be  defeated,  could  a  person  by  his  resignation  from 
ollice  obtain  imnuinity  from  impeachment.  It  was  said  that  in  the 
United  States,  a  resignation  of  a  public  office,  when  duly  filed  or 
presented,  is  valid  without  the  acceptance  of  anyone.''  If  accept- 
ance by  the  President  is  necessary  to  make  a  resignation  take 
eflVct,  the  President  would  then  have  the  power  indirectl}'  to 
pardon  an  impeachable  offense,  which  the  Constitution  expressly 
withholds  from  him.'^ 


'  Manager  George  A.  .Jeiiks,  In  IJel- 
knnp's  Case,  pp.  l,5l-l.'>.") ;  JIanager 
(icorgo  Frisbio  Hour,  ibid.,  pp.  1!)'2- 
193  ;  and  arguments  of  other  ninnagers 
and  opinions  of  senators  wlio  voted 
for  conviction,  pamim. 

*  Howell's  State  Trials,  vol.  xv,  p.  1. 

»  Supra,  §  !)0.  That  Blount's  Case 
Bottled  that  no  senator  or  represen- 
tative could  be  impeached,  and  that 
no  private  citizen  can  be  Impeached 
o.Tcept  for  an  act  done  under  an 
oBicial  capacity,  was  conceded  by  the 


managers  of  the  House  of  Ecprcsenta- 
tlves  In  Belknap's  case  (Manager  Scott 
Lord,  Belknap's  ('asi>,  \t.  lOlt ;  M.ina- 
gor  George  A.  .Jenks,  Belknap's  Case, 
p.  171;  Manager  George  Frisbio  Hoar, 
Belknap's  Case,  p.  17!)  K 

"  Manager  George  Frlsbie  Hoar  in 
Belknap'.s  Case,  pp.  lU.'i-lilfi;  cii,.u(f 
Whitlcmore's  Case.  See  mipra,  ^  71. 
Conim,  F..l\vardB  v.  V.  S.,  103  IT.  S., 
471 ;  Meehem  on  Public  Officers,  §  4U. 

'  Article  II,  Section  '2. 


670 


IMPEA'^llMKNTS. 


[('ll.M'.  Mil, 


If  it  he  conceded  that  in  any  case  a  pei-Hon  can  he  couvictiil 
by  (lie  S'jnate  upon  an  imj)ea('iiincnt  when  out  of  oirux'.  llie  nilc 
nlll^t  a|i])ly  to  all.  No  aihitraiv  |niiiit  of  time  ciin  ]n'  si'leclfil, 
i)eroi\'  which,  hy  i'esii,Miatinii,  he  can  he  ahsolvod  fi-nn  the  cnii- 
seijUi'iK'cs  of  iiis  liji^'h  ciiiiu'-i  and  niisdenieaiiois,  and  alter  which 
he  eaiiiiot.  ( 'onseijiieiitly,  if  ihc  view  niaiiilaincd  on  lichalf  uf 
the  icspondent  is  eoirect,  a  jinhlic  olliccr  may  rc.si^'ii  his  ollice  diii- 
inj^  an  ini|ieachnieiit,  aft  •!'  iiis  conviction,  at  any  time  hei'oie  tlic 
Hciitenci'  has  hcen  actually  pronounced.  Tiiat  would  he  to  render 
the  whohi  proceeding's  nu^'atory  and  ahsurd.  It  cannot  !)•  tint 
the  Constitution  warrant;  sueli  an  ahsurdity." 

The  last  part  of  this  artjunient. seems  not  heyond  dispute.  Tiicro 
is  a  wide  distinetion  hetweeii  an  exit  from  olliee  pendinjif  an  ini- 
peaehment  and  one  heforo.  After  the  jurisdiction  of  the  court 
has  once  iittached,  hy  the  vote  of  the  House  of  Uepresentativcs 
that  an  ollicer  he  imju-aehed.  it  may  well  he  claimed  that  lu)  sul>- 
sei]ucnt  act  hy  him  or  hy  the  President  can  divest  it.  That  this 
was  so  appears  to  have  hcen  the  {H>inion  of  a  lunuher  of  senatoi-s 
who  liiout,dit  the  Senate  had  no  jurisdiction  over  iJelktuii).* 

The  third  point  of  the  arj^unamt  seems  the  stronj,'est.  Tiio. 
hmjruaj^e  of  the  Constitution  providiufj  that  a  civil  ollicer  of  the 
United  States  can  he  imi)eachcil,  it  is  true,  limits  the  jurisdiction 
to  the  otlicers  named  in  that  section  of  the  Constitution.  The 
jurisdiction  j;ranted.  however,  is  over  the  jjcuson  who  is  tlie  ofliccr; 
and  attaches  to  him  for  the  rest  of  his  life.  There  is  certainly  no 
tixpress  provision  in  the  Constitution,  nor  docs  its  lanL,niapre  ncccs- 
saiily  iniply  that  when  he  cciuses  to  he  an  ollicer  he  is  relieved 
from  liahility  to  impeachment.  If  a  statute  jjrovided  that  an  olli- 
cer or  a  director  of  a  national  hank  should  he  liahle  to  punisli- 
meiit  for  an  official  act,  the  courts  would  not  dismiss  an  indictment, 

'  Seo  tlie  lU'KUiiH'Uts  of  llio  maiia-  in  sucli  a  case  tho  Scnato  would  Ioho 
giirs  iiiul    opiuioiw    of    tlio    senators      jurisiliction,  il>iil.,  p.   l:t7.     Ex-.Jniltro 


who  voloil  for  conviction  in  Bcllcnap's 
case,  jinHHim. 

''  Si'nator  Conlclinn  in  BoHtnap's 
Trial,  p.  239;  Senator  Fri>lingliuysen, 
ibiil.,  pp.  25!)-2r,2;  Senator  InKalls, 
ibiil.,  p.  •i'.H.  See  Montgomery  Blair, 
counsel  for  tho  responileut,  ihiil.,  p. 
88;i.  Ex-Soualor  Maltliow  H.  Carpen- 
ter, respondent's  counsel,  claimed  that 


Jereniiali  S.  Bl.ieli  ili'eliued  to  express 
an  opinion  on  tliis  |)oint,  ibUI.,  p.  21G. 
Of.  In  re.  W.ilkei-,  3  Am.  Jurist,  2S1. 
The  Mississippi  senate  eonlinueil  tlio 
trial  of  Lioiitenant-Governor  Davis 
and  pronounced  judgment  against  him 
notwithstandiiiK  his  resiRnation  after 
tho  proeeodinKs  had  begun.  (See  Ap- 
pendix, infra.) 


§  ''2.] 


LIAHIIJTY    OK    I'DiniKI!    OI'KICKIiS. 


Ih'i'iiusc  fduuil  aftiT  tlu'  oniciiil  torm  liiul  cxpirod.  Tliat  is  siiid  to 
lie  till!  iiiitiinil  and  priu'ticid  iiii'itiunt,'  of  tlie  liiiiijimjrc  used  by  tlic 
Coiistitiitioii.  I'ublic  jKtlicy  iiiiiy  wi'U  dciniiiid  tlic  jicrix'tiial  dis- 
i|u;dii'u'ati()ii  from  ollict)  of  a  criminal  wliom  it  was  not  jMissililc  to 
iiiipfai'li  diirinj^  his  oHicial  term  lu'cansi^  tlio  evidtnci!  to  pi'ovc  liis 
1,'iiilt  liad  tlit'M  not  been  disuovcrcd.  In  tlic  Federal  ("onvcn- 
ijoii.  there  was  sonio  diseussion  as  to  wliethcr  it  would  not  he 
Will  tf)  confine  iinpeachmeiits  of  the  I'resiiU'nt  to  a  time  when 
lie  was  out  of  ()lli<'e,  a.s  was  the  practice  in  \'ii'j,'inia."'  This  shows 
tliut  it  was  the  helicf  of  those  who  drew  the  Constitution  that  ini- 
|ii  iicliments  might  take  pl.ioe  at  tliat  time.  Several  State  consti- 
tutions before  and  since  have  provided  for  impeachment  after 
tiic  expiration  of  an  ollicial  term,  as  well  as  dniinj;^  the  same." 
'I'iie  failure  to  provide  against  impeachment  after  an  ollicial  t;  rni 
siiows  an  intention  that  it  should  be  includ(!d.  To  this  it  was 
icplied  that  tiie  failure  to  inchulc,  showed  that  it  was  intcndeil 
til  exclude  it.'^  In  Blount's  case  both  the  counsel  for  the  defcnd- 
iiiit  conceded  that  an  otlicer  could   not  relieve  himself  from  the 


"  Elliot's  Dohiitcs,  2il  eil.,  vol.  v, 
p.  Hid.  S("(i  Vlrt-inia  roiistltiiUoii  of 
177(i.  Similar  is  tlio  Chiliau  ("onstltu- 
tiiiii,  .\rt.  H'.i. 

11  ri'iinsylvnula  Constitution  of  177fi, 
Sim'.  '22  ;  Dolawarc  Coiiatitiition  of  177fi, 
All.  '2;t;  Vi'i-Mioiil  Constitution  of  17H(!, 
I'll.  II,  .\il.  XXI,  and  (loorgia  Consti- 
tulion  of  I'flS,  .\rt.  I,  Si'f.  10. 

I-  "It  irt  argued  tliat  If  a  rcsif?na- 
tiiiM  slioiiid  lie  pormittnl  iindor  such 
I'iriuiuKlani'cs,  tlin  pcoplo  would  lio 
(lifrauilcd  out  of  their  rights  to  have 
till'  olTerder  disqualified.  The  aifju- 
iiii'iit  is  that,  as  the  party  ought  to 
I'Kiape,  the  law  does  not  prevent  it. 
lint  this  does  not  follow.  It  might 
lii'tliiM'oniinon  case  of  a  raswM  ominnu». 
But  I  eoutend  that  It  Is  not  a  camiH 
omiMHUH,  and  point  to  the  deliates  to 
i'liiiw  that  it  was  never  coiiteinplated 
tlmt  any  but  persons  holding  ofUce 
sliiiiild  bo  impeached,  and  also  to 
show  that,  so  far  from  being  a  fraud 
upon  the  jurisdiction  of  the  Senate  to 


resign  ponding  an  impeaeliment,  those 
debates  show  that  an  inlliientlal  p.irl 
of  the  convention  was  opposed  io 
Impeaeliment  altogether,  and  lliougtit 
the  lM>tler  way  was  an  appeal  to  the 
peo|ile  by  tlie  aecused  ])arty;  and  it 
Is,  therefore,  consistent  with  tlie 
views  of  all  sides  in  the  convi'iilion 
that  a  way  of  escape  by  resignation 
should  lie  left  to  an  accused  olllvr  in 
order  to  enable  him  to  have  his  day 
when  a  more  auspicious  period  for  a 
fair  and  just  judgment  could  be  had 
upon  his  case,  while  effecting  tlie  only 
object  eonteinplated,  namely,  tlie  re- 
moval of  the  ofllcer.  No  evil  or  alnise 
can  result  from  tlie  reslgnatiim.  It  is 
a  purely  iniaglii.iry  111  which  can  arise 
from  withholding  the  hand  that  would 
disfranchise  a  citizen  and  di.-abin 
him  from  vindicating  himself  In  a 
calmer  moment."  {Montgoinei>-  Hl.iir. 
Counsel  for  the  Defendant  In  IJc>l- 
kuap's  Case,  pp.  98-99.) 


578 


IMI'KACIIMKNTS. 


[chap.  XIU. 


imiH-'iichmuiit  by  resijfuation.'*     Jolin  Qniiicy  Adams  saiil  iu  Coii- 
^less  tliiit  an  (lilluer  could  \ni  inipuiiehed  fur  uii  ollicial  act  at  any 


'"  "  Tho  (iriiiflpal  argument  on 
both  sidi'B  wiiHou  tlie(Hiu»Uou  whether 
a  Sciiutoi'  wus  UII  lm()i?U('ha)ilu  I'ivil 
ulllci'i',  and  Uicmo  in  no  cloulil  tliat  tho 
Jud^'inrnt  MisliiiniriK  tliu  ])li-a  was  on 
that  Ki'ouiul.  Hut  tho  opiiilonM  of 
the  VKiy  ulilo  i.'oiuiHi'l  on  liolh  Hides 
eonsliliite  very  weinlily  evldeine  of 
the  ('ontiMn|Minini'oiiH  iiuilcistandiii); 
of  thi-  t'oiisiitiilion.  'I'hi'  two  mana- 
gers, Mr.  Jlavaid  and  Hi'.  HuipiT, 
and  till-  iN\o  lounsi'l  for  thi'  drl'i'u- 
(lanl,  Mr.  Dallas  and  Mr.  In;;ersc>ll, 
well'  anions  the  aMest  lawyers  of 
their  day.     Mr,  Uayard  said  :  -  - 

"  '  It  is  also  alleged  in  llie  plea  that 
the  party  iinpi'ached  is  not  now  n 
Si'nator.  It  Is  enoiiK'i  tliat  lie  was  a 
Bonalor  at  the  lime  tho  arlirlea  were 
prel'crre<i.  If  the  iiicpeaclimeiit  were 
refiwlar  and  niainlainalile  when  pre- 
ferred, I  apprehend  no  Hubsec|UeuL 
event  yioiiiidcd  ou  the  wUlfiil  act,  or 
caused  liy  the  deiiiKiucni-y  of  the 
party,  eaii  vitiate  or  obstruct  the  pro- 
eoeiliii^;.  Otherwise  the  party,  by 
resiKiialion  or  the  <H)iiiiuissioii  of 
some  olTi'iise  which  merited  and  oc- 
eaeioned  his  e.\pulsioii,  niij^ht  secure 
his  impunity.  Tliis  is  ai{uiiist  ono 
of  the  Hagest  maxims  of  the  law, 
which  does  not  allow  a  man  to  Uurivo 
a  bciiellt  from  his  own  wrong.'  Mr. 
Dallas,  fur  tlie  <lefenihiiit,  said  :  '  There 
iciM  riMim  for  aryuiiK'nt  whelhor  an 
officer  coulil  lie  inipeaciicd  after  he 
was  out  of  olTice;  not  by  a  voluntary 
resinnatiiin  to  evade  iirost  "tion,  but 
by  an  adversary  expulsion.'  "  (Blount's 
Case,  Wharton's  Slate  Trials,  p.  2«1.) 

"Mr.  Iiij^ersoll,  tor  the  ilefendant, 
said  :  '  It  is  amonj?  tho  less  objections 
of  tho  cause  that  tlio  defendant  Is  now 
out  of  olUeo  not  by  resigaution.  I 
cortaluly  shall  uever  contend  that  an 
offlcr  may  llrst  commit  an  offense 


and  aftorward  avoid  pnnishmiMit  by 
resigning  his  office ;  but  tlie  defeiid- 
aut  has  boeu  expelled.  Can  he  be 
removod  at  one  trial  and  disipialillod 
at  another  for  the  same  olTense.'  Ig 
It  not  tho  foim  rather  tlian  the  suii- 
stance  of  a  trial':'  Do  the  Si'iiate 
come,  as  Lord  Manslleld  says  a  jury 
oiiglil,  lil<e  a  blank  paper,  withiMil  u 
pri'vious  impression  on  tlieir  imImiIh? 
Would  not  error  In  the  llrst  senli'in-.' 
naturally  be  provluctivo  of  error  In 
second  iiislancey  Is  tlieie  not  rcM^oii 
to  apprehi'iid  the  strong  bias  of  a 
former  decision  would  be  apt  to  pre- 
vent the  inlluenco  of  any  new  lights. 
lirouj,'ht  fiu-waid  upon  a  seconil 
trial?'"  I  mount's  Cise,  Wliail  iii's 
State  Trials,  p.  ii'.Mi.) 

"  It  seems  to  mo  that  the  ((lusent- 
ing  opinion  of  these  leadi'is  of  lie' 
Aniericau  bar,  two  of  them  luakiii;.' ,1 
concession  against  their  clliiil.  i'i 
entitled  to  great  respect.  Tlicy  all 
agree  that  the  fact  that  there  I'ari  bo 
no  judgment  of  removal  is  notiiceisivo 
against  the  maintenance  of  the  pru- 
cei'ding ;  for  that  is  true  whenever 
the  office  has  been  laid  down.  Hut 
the  defendant's  counsel  eonlliie  tlieir 
objection  solely  to  tlie  fact  that  llin 
removal  has  been  aceomplislied  by 
another  constitutional  mode  of  deal- 
ing with  the  same  olTense,  and  one 
which  has  disipiaiilled  the  tiiluiiial 
itself  from  proceeding  to  give  jucls;- 
ment  in  Impeachment.  I  do  not  unroe 
with  tho  distinguished  goutleincu  oa 
the  other  side  as  to  tho  slateiiient  of 
a  iirinciplo  of  constltuiional  law  iiiadu 
by  , Tared  IngorsoU  and  Mr.  Dallas  - 
11  concession  directly  against  the  in- 
terest of  their  client  —  because  they 
wore  coIlC(^ding  that  under  some  cir- 
cumstances a  person  could  bo  iia- 
puauhed  after  ho  had  loft  au  ulUoe. 


§:.:!] 


l.IAtWMTY   OP   FORMKK   OKI'tfKRS. 


tiini!  (luring  his  Huksoqiieiit  lil'o.'*  State  scimtL's  iiave  susl;iiiucl 
iU'tii'lcs  of  iinpuauliiiiLMit  for  t)ITuiisi!.s  coiiiniltti'il  lit  jiiuvioiis  iiiul 
iiiiiiiciliiiti'ly  |)i'i'i'e(iiiij(  tcniiH  of  tlit!  simiu  or  ;i  siinilar  ollice.'''     It 


It  uiiH  fur  iho  IntiircHt  of  their  cllmil 
III  iiiiuiiliiiii  llm  K''"<'>'«l  (loi'ti'iiiti  Ihat 

Ullll''!'      Ill)      t'il'('IIIII!itUII<'l>B     II      pl'l'MIIII 
IMlulil  III'  llll|ll'UI'lll>(l    llfttT   liu   hilll   lofl 

an  oiJli  1'.  IL  was  fur  tliii  Interest  <if 
tlii'ir  client  tu  nialntuiii  tlio  general 
(ioi  Iriiie  tliat  unilur  no  eireiiMmtuueeH 
c'liiilil  tlial  bu  ilono.  Ono  uf  tliesii 
ilislinnnl^lied  n''"ll'''n<'"  wiv«  lio  Ih 
not  eapalile,  he  never  wiil  ho  lid  liy 
any  pinfeHsidMal  neeensily,  to  armio 
llial  u  man  wlio  lays  down  his  ollleo 
tiiaviiid  the  ]uiia!ty  of  Ids  crime  can 
siM'sca|>e,  and  liieolhery  in  dilVerenl 
laii!,'uag()  liiit  in  Hulistance  concnrred 
ill  I  he  same  o|iini()n.  Tliey  put  their 
ai'^Miment  on  the  i^round  tliat  undor 
arioiher  conslitutional  provision  llio 
man  had  been  expelled  for  tho  h»nio 
laiiso  from  tho  Senato  withlu  a  few 
days.  In  other  words,  u  eouslilu- 
tioiial  and  cpiai^i  jmileial  proei'ediiiK 
liad  been  had  which  not  only  exempted 
till'  defendant  but  disi|\ndilleii  tho  tri- 
liuiial.  One  of  the  gentlemen  t^oes 
<in  to  ai'(;ne,  'How  is  it  po>^sible  to 
have  u  trial  on  inipeachmiMt  before 
a  body  that  by  u  two-thirds  vote  has 
just  di  termined  every  i|uestion  of 
f.iil  which  is  involved  In  tho  issue?' 
That  was  the  iiiunnii'iit  which  Ihoso 
(ouMsel  Buiiinilled  to  llio  beuuto  at 
that.  time.  Of  tho  toundness  of  the 
decision  to  the  Hlonnt  ea.so  no  ((ues- 
tion,  as  far  as  I  can  rememlier,  has 
been  lali-ed  since.  That  the  membiTS 
el  either  liont-e  of  t'onfiresw  should  be 
in;peachnblo  by  or  before  tho  other, 
or  that  nil  ollicer  whose  dm  it's  uro 
IcKif^lative  fhonld  bo  culled  in  ([ues- 
liiin  elsewhere  for  olTlcial  acts,  could 
never  be  tobraled  and  is  repuKnant 
to  the  naluro  of  the  ofllco  itself." 
(ManaRor  Oeorgo  Frisbio  Hoar  In 
Uelkiuips  Case,  pp.  186,  187.) 


""The  miinai^er  from  Massachu- 
setts cited  John  liuin -y  Adams,  and 
coiiplud  tho  citation  with  as  lofty  ft  ou- 
logy  as  ono  man  can  make  upon  an- 
other. I,  of  course,  do  not  detract  from 
the  merits  of  tluit  distiiiKuishod  man. 
Ho  must  liiivi!  had  somo  attract Ivo 
i|Ualitios,  sinoo  ho  was  considered  by  a 
very  larKe  niunber  of  his  <'ountryiiiea 
lit  to  bo  set  up  as  a  candidate  for  rresi- 
dent  apiaiiist  him  who  was  then  tho 
foremii-t  man  of  all  lids  world.  Hut 
the  public  history  of  Mr.  .\dains  shows 
that  he  of  all  men  that  ever  lived  wag 
tho  least  reliable  upon  a  (luestion  of 
law.  He  was  too  fond  <if  pi'isonal 
eontrover.sy  to  care  whbh  side  he 
to(d<.  It  appi'ors  from  the  citation 
Itself  that  tho  fjeneral  opiuiou  of  the 
House,  us  oxpri'ssed  by  other  mem- 
bers, was  that  the  power  of  Impeach- 
ment applied  only  to  persons  actually 
in  olllcc.  Mr.  Adams  of  course  op. 
jioscd  what  everybody  else  believed 
to  bo  true.  Nolhinn.  indeed,  would 
have  f^hen  him  (jrcater  pleasure  than 
to  be  impi'ached.  It  would  h;ive  f^ivon 
him  an  opportunity  to  come  over  here, 
and  lay  about  him  right  and  left. 
His  organ  of  <  ombativeuess  was 
always  in  a  state  of  chronic  inllamina- 
tiou.  He  enjoyed  nothing  so  much  as 
ho  <U<I  tho  ccWomiaiVi  tjmidia  —  the  r.'ip- 
turo  of  the  stiil'e.  That  was  llio 
strongest  passion  nf  his  nature.  Ho 
tiied  to  provoki'  a  motion  for  his  own 
eximlsion  from  the  House,  and  that 
f.iiliiig,  he  ]iresentcd  a  p<'titio!i  from 
somo  outside  enemy  to  expel  him- 
self." (Jeremiah  S.  lilai'k,  ('ounsel 
for  the  Defendant  in  IJelknap's  Case, 
!>.  'ilH. : 

'j  Barnard's  Impeachniont  Trial, 
vol.  i,  p.  I'.tl.  liuiler's  Impeachmeut 
Trial ;  UubboU's  Impeachmeut  Trial. 


)80 


IMPKACHMENTS. 


[chap.  xirr. 


lias  1)6011  lield  that  after  a  man  has  ceased  to  he  a  soldier  he  iiiav 
he  tried  by  a  court-martial  for  an  offense  eoniniitted  while  he  was 
suhject  to  the  articles  and  rules  of  war.'** 

Ill  the  arguments  on  the  other  side  it  was  claimed  that  the  pii)- 
visions  for  impeaehiiients  were  {jcnal  and  must  ho  construed 
strictly.  They  deprive  the  accused  of  a  trial  hy  a  jury  and  of  tin.; 
other  safeguards  granted  to  criminals  hy  the  Constitution  ;  and  lie 
may  he  put  twice  into  jeopardy  for  the  .same  nITense.  since  an  ini- 
pea.ihnient  is  not  a  bar  to  a  sui)sequeiit  iiulictinent  in  a  court 
of  common  law  for  the  same  crime.''  if  a  private  citizen  can  he 
successfully  lnn)eachcd  (iiie  day  after  his  exit  from  oHicc,  he  may 
he  impeached  at  any  time  during  his  sul)sccj,uent  life.  To 
authorize  such  proceedings  would  jilaee  a  tcrril)le  weapon  in  the 
hands  of  a  dominant  j)olitieal  ixirt}-.  That  no  such  attemiit  was 
made  before  the  case  of  Belknap,  was  a  sign  of  the  belief  that  the 
power  did  not  exist,  since  party  ft'cling  was  cjuite  as  hitter  after 
the  defeat  of  the  Federalists  by  the  Democrats,  and  the  defeat  of 
the  Democnits  by  the  Hepuhlicans,  as  at  any  suhseciucnt  time.  It 
has  been  the  repeated  practice  in  the  House  of  Heprcsentatives  to 
<lrop  the  proceedings  when  the  accused  has  resigned,  pending  an  in- 
vestigation as  to  whether  he  had  committed  an  impeachable  otTense. 

It  was  held  hy  the  New  York  Assembly,  in  tiie  cases  of  Fuller 
and  Cardozo,  that  after  a  resignation  a  i)ul)lie  ollicer  could  not  he 


••  Then!  wiis  good  mason  for  ovorrul- 
iiiK  tlio  |)li'ii  to  tho  jiidsillction  in  tliii 
tlu'oe  ('(isi^a  just  iiicnlioui'd.  Kacli  re- 
spimilont  wiis  a  civil  olllcor  nt  the  timo 
li(>  wiirt  iiiipciu'lKMl,  iiud  liiid  lii'i'u  such 
iiiiinlorniptcdly  since  tlio  alleged  niis- 
di'Mieiinois  in  ofllce  were  conunitted. 
Tlie  fuel  thiit  tlu'  offi'iiso  occurred  in 
till)  previouH  lorni  whb  ininmtnriiil. 
Till!  object  of  iinpeacliment  is  to  re- 
move a  corrupt  or  urnvorlliy  oillcer. 
If  tho  term  has  e.\])ireit  and  he  is  no 
lon^-er  in  t.nice,  thalolijoet  is  attained, 
and  tlio  ri'ason  for  his  inipeachtnent 
no  longer  existi-..  lint  if  tho  offender 
is  i-till  an  ollicer,  he  is  anienalile  to 
irnpenehnient,  iilthoiiKh  tho  acts 
charged  were  committed  in   his  pro- 


vio\i9  term  of  th(>  same  offli'e."  fStnte 
11.  Hill,  Ex-Treasnrer,  117  Nehrasku, 
80.) 

"The  term  ollicer  cannot  properly 
1)0  aiiplied  to  a  person  who  is  not  at 
tho  tiino  in  tlio  holdinfi  of  an  ofllcr. 
When  a  person  ceases  to  hold  olllee, 
he  iniinediatcly  becomes  a  private 
eltlzen."    (Ibid.,  p.  no.) 

''■  Lord  GeorKC  Sackville's  Case, 
A.  D.  1700,  Tytler  on  Military  Law, 
ch.  ii.  ;  fn  re  AVliliarn  Walker,  ;t  Ameri- 
can .Tiirist,  2H1.  lint  so(>  Winthrop, 
Digest  of  Opinions  of  .Tiidgo  Advocate 
Generals,  ed.  IHHII,  p.  201). 

"  Ex-.Iiid),'e  .Tcremiah  S.  lilaik. 
Counsel  for  Defendant  in  Bolkuup'8 
Case,  pp.  220-227. 


§03.] 


IMPEACHABLE  OFFENSES. 


681 


iinpfiulied."     Tlie  Supreme  Court  of  Xul)i-i!,ski  has  hekl  tliiit   no 
<iue  cau  1j(!  iui[)uiii;liL'd  after  tliu  exiiiratiou  of  liis  oHiei.il  term.''' 

"  'I'lii!  I'oiistitiltioii  declines  tliiit  wln'ii  tiie  I'lvsideiit  is  iiiipeucbed  the 
(  liicf-.Iiislice  shall  preside.  The  (iiiestioii  has  been  iimpotuided  re- 
pi'iiiedly,  and  by  several  Senators,  who  would  pieside  if  au  IOx-1'resi- 
(leiit  was  impeached?  I  will  admit  that  is  a  pu/>/le.  The  puzzle  arises 
out  of  the  absurdity  of  inipeaeliiiig  an  K\-l'resident.  Our  friends  on 
the  other  side  are  so  hampered  i)y  their  own  theory  that  they  are  obliged 
simply  to  decline  ausweriiif^.  Tlu'rc  is  one  answer  and  only  one  con- 
sistent with  their  loj^ie,  and  that  is  this  :  That  when  an  Kx-1'resideut  is 
iinpcaehed  an  Es-C'hief-Justice  oufjlit  to  preside  at  the  trial."-" 

Tlie  doubt  upon  tlie  (piesliou  and  tlie  unsatisfactory  result  of 
l?elkiiap's  case,  make  it  luglily  improbable  that  a  .similar  attempt 
will  1)0  made  in  tlie  future. 


^»:t.    Iiiipeaclialtlc  OffeiisoN. 

The  provision  in  tiie  Constitution  of  the  I'nited  States  eoncern- 
lU'^  inipeaehable  ort'enses  is,  that  — 

"the  President,  Vice-rresidont  and  all  eivil  oflieers  of  the  I'nited 
States  shall  be  removed  from  Olliee  on  Impeaehinent  for  and  Conviction 
of  Treason.  Bribery,  end  other  hiirh  Crimes  and  Jlisdeineanors."  ' 

It  hits  been  claimed,  as  has  been  shown  above,  that  tliis  claiiso 
dr.os  not  limit  the  jiower  of  impeachment;  but  tiiat  under  tho 
previous  provision  on  tlie  subject,-  the  persons  liable  to  ini[ieaehment 
are  the  siuiie  here  a.-i  in  iMiEfhuid.''  It  is.  however,  well  settled  that 
the  sole  iinneaehable  olYeiises  are  "  Treason,  Hribeiy  and  ot'.ier  hieh 
(billies  and  Misdenieaiiois."  Treason  has  been  delined  in  tiie 
Constitution  as  follows:  -  - 

"Treason  afiainst  the  United  Stales  shall  consist  only  in  levyinji 
War  against  them,  or  in  adhering  to  their  Kneinies,  giving  thoni  Aid 
ami  Comfort." ' 


i»  Cited  in  Uarnanl's  Trliil.  vol.1, 
pp.  ir)S,.ir)l.  See  the  Mississippi  c.-'HeH 
ill  tlio  Apjieiidix,  infi-n. 

"  Statu  V.  Hill.  Kx-Treasiirer,  117 
N'eliiiiska,  SO;  i|iiiil('d  xuprit,  unto  LI. 
See  Appeiiilix,  infra. 

-'  Ex-.IiKlKe  Jeronilali  S.  Blaok  In 
lielkuap's  Cuso,  p.  225. 


§  m.  1  Arliele  II,  Se<'tion  4. 

-  Article  I.  Seetion  '2. 

•'  S::jirii.  i  ill. 

«  Arliele  III,  SeeliDii  ;i.  Seo  tho 
diseiissieii  ol'  llio  .Iiidieial  I'owor, 
infra. 


.582 


IMI'KACHMKNTS. 


[CIIAI'.  Mil. 


F(ir  till'  (IcliMit'rtu  of  tlio  crime  of  biil)ery  wo  nnist  look  to  the 
(■(PiiiiiioM  law."'  'I'li'j  ()!il_v  (lilliciillv  iuisf.s  in  the  foiistniciioii  of 
til.'  liMiii,  >•  other  lii;>li  ( 'rimes  luid  .Mi.sdunieiiuor.s."  As  to  this  fmii' 
theorits  have  lieeii  ])roiioseil:  'i'liiit  exee[)t  treason  or  hriheiy  mi 
offeiHu  is  inipeiieiialile  wiiieh  is  not  deehued  liy  a  sUitute  of  the 
United  States  to  be  a  crime  subject  to  indictment.  That  no 
oft'eiisc  is  im[ieaciiable  wliieh  is  not  subject  to  indictment  by  such 
a  statute  or  by  the  common  hnv.  'J'iiat  all  offenses  are  imiicadi- 
able  which  were  so  by  that  branch  of  the  common  law  knuwii  as 
the  law  of  I'arliament.  And  that  the  House  aiul  Senate  have  the 
discictiiinarv  jiower  to  remove  and  stiL;inat'ize  by  perix'ln  d  disi|u;di- 
fi.atioii  an  olliccr  subject  to  im[ieachment  for  any  cause  that  to 
them  seems  lit.  The  position  that,  except  ti'casou  or  bribeiy,  no 
offense  is  impeachable  which  is  not  indictable  by  law,  was  main- 
tained by  the  counsel  for  the  respondents  on  the  tri;ds  of  Chase'' 
and  Johnson."     Out  of  abundant  caution  in  this  respect  certain 


"  Story  on  llioCoiistittilinii,  fiUi  od., 
§  7;i(),  Hco  tlio  (lut)ulo  ill  Hiiniaiil's 
IiiilM'iicliiiu'iil,  Trial,  pp.  '2(1.")!) -Ii07."i ; 
anil  ilio  pr(MM>(>iliii^(n  in  licllciiap's  Ini- 
peacliiiioiit  'I'lial,  Miprii.  ij  ItO.  Tlie 
Uvcnticlli  arlii'lc  nf  Jianianl's  Ini- 
poarliiiuMil  c'liiir};i'<l  iliaL  suitors  wlio 
hail  casrs  tlcii  pending  in  liis  (•oiirt 
hail  iircseiiicil  irl.miO  to  liis  <'luli!, 
anil  oil  aiiotlicr  occasion  had  ^ivi'n  to 
liiiii  a  iniMiliiTof  costly  chairs  of  llio 
valiii'of  $r,(H)  anil  iipwar.ls.  Tlio  los- 
t.iiiioiiy  iirovi'il  till"  pii'spiil  to  tho 
<'liil(l,  but  was  conllirtirif;  as  to 
whclliiT  Iho  .jinU;o  had  jiaid  for  the 
chairs.  A  inajoiity  of  the  Ni  .v  YoVk 
Court  of  Inipi'ichuii'iit,  ini'lndinj;  nil 
\\w  .indues  of  tho  Cour'j  nf  Appeals, 
except  .1 11(1^11  (Ifover,  voted  not  f^uHty 
on  this  nrtii'le  upon  the  f;iinirid  that 
the  pi'esent  to  the  child  was  ("iven  in 
such  n  manner  as  to  eroate  n  trust 
which  he  linil  no  power  to  refuse. 
(Ilild.) 

"  r.iuher  Miu'tJn'.sarsniuent  in  Chase's 
liupeiichnient  Trial,  published  by  Sam- 
uel II.  Smith,  vol.  ii,  pp.  l;i7-lll. 


'  Henjnniin  1?.  Curtis,  Kx  Justice  of 
the  Supreme  Court  of  the  United  Slaus, 
ciniiisel  for  the  defendant  in  .JuIuishm's 
I'upeai'hinent  Trial,  vol.  i,  pp   4iiS-lll: 

"  In  the  front  of  tliis  iiiiiniry  the  cjues- 
tidii  presents  ilsell':  What  afi'  iiiipeiii'h- 
able  nt'feuecs  under  tiie  Coustiluijuii  ef 
the  fuitid  Stales  '!  l.pnii  this  (piesiien 
learned  dissertations  have  lieeii  writuii 
and  printed.  One  of  theiu  is  aniiexeil 
to  the  ari-niinent  of  the  hnuorable  mm- 
ager  who  opetcil  llie  cause  foriliepmsi- 
eetition.  Another  one  ou  the  otle  r  .side 
of  tile  (pie.^tloii,  written  by  one  of  the 
honorable  managers  theiii.selves,  m  ly  be 
found  annexed  to  the  jiro  ■eedllifjs  ill  tlio 
House  of  Itepresentativesnpoii  tlieo'.'ca- 
sioii  of  the  lirst  attempt  to  impeach  the 
President.  And  there  have  lieennthrrs 
written  and  published  by  learned  jiirist.i 
toui'liint;  this  mlijeol.  1  do  not  prop"se 
to  vex  the  ear  of  tho  Seiiato  wlili  ai.y  ;■? 
the  preeedents  drawn  from  tlie  iiiiddlc 
ages.  The  fraiiiers  of  our  Coustiliitinn 
wiTeqnile  as  familiar  with  them  as  llie 
learned  authors  of  these  treatises,  and 
the  franiers  of  our  tJoiistitiitiou,  as  I 
conceive,  have  drawn  from  them  llni  leu- 


^  93.]  imi'i:a(;iiaiu.e  okffixses.  683 

criiniual  statutes  such  as  tlic  'rcinin)  of  OHicc  Act  of  lads'*  Iihm^ 
«  14  Si.  lit  L.,  p.  431 ;  U.  S.  U.  S.,  S  1772. 


snn  which  I  desire  the  Senate  to  receive, 
tlial  these  precedents  are  not  lii  to  pov- 
(111  tlieir  conduct  on  tliis  trial.  In  my 
:ipprelu'nsion,  tlie  teadiinns.  tlie  roipiire- 
lui'iiH,  tlie  proliiliitioiis  of  liie  Con.>ititu- 
tioii  ol  tlie  United  States  prove  ail  tliat 
is  necessary  to  be  attended  to  f.ir  tlie 
piir|)oses  of  tills  trial.  I  jiroiiose.  there- 
I  lie,  iiisti'.id  of  a  search  tliroiijh  the 
pri'cedenis  wliicli  were  made  in  liie  times 
nf  liic  I'laniayeiiets,  the  Tiidor.s.  and  tlie 
Smarts,  and  wliicli  have  Ijeen  repealed 
since,  to <'oine  nearer  home  iind  see  what 
provisions  of  the  Constitution  of  the 
Initi'd  Slates  bear  on  tliis  (iiieslion, 
and  wliether  they  are  not  silllicieiit  to 
siltle  it.  If  they  are,  it  is  rpiitc  inima- 
teriiil  what  exists  elsewhere.  My  lirst 
position  is,  that  when  the  ronstitution 
speakH  of  'treason,  liribi'ry  and  other 
liigii  crimes  and  misdemeanors,'  it  re- 
fers to,  and  includes  only,  lii^'li  criminal 
ol'fiMices  against  liie  I'liiled  Slates,  made 
so  by  Ronie  law  of  the  I'liiti'd  States  ex- 
isting; when  the  nets  complaiiied  cif  -.vere 
ilone,  and  I  say  thai  this  is  jilaiiily  to  be 
infirred  from  ee.cii  and  mery  provision 
of  ihe  Constitution  on  the  snlijecl  of  im- 
inachmeiit.  'Treason'  and  '  hrdiery.' 
Nuliody  will  (hmbl  that  these  are  here 
ilcsii,'iiali'd  lujili  crimes  and  niisd''niean- 
liis  af;ainsl  the  rnili'd  States,  made  such 
by  the  liiw.s  of  the  L'nitfd  Slates,  which 
llie  framers  of  tlie  Constiliition  knew 
iiuist  hi)  iiasscd  in  llie  nature  of  the  i;ov- 
eniment  tliey  were  about  to  create,  be- 
ciuLso  these  are  offences  wliicli  strike 
at  the  existence  of  thai  governnn'iit. 
'Other  h\ji\\  criines  and  mi-demi'anor.s.' 
Xiinriliir  aniiciis,  lli;;li  ciiines  and  niis- 
ili'ineanors;  .so  in^li  that  tliey  belon;,'  in 
this  company  willi  liea-on  and  briliiry. 
That  is  plain  on  the  face  of  theCniislitii' 
lion  in  the  very  liist  step  it  takes  on 
tlie  subject  of  iinpeaellliieiil  'Ili-ili 
crimes  and  misdemeanor-t '  ai;aiiist  what 
law  ?    There  can  be  uu  crime,  there  can 


bo  no  misdemeanor  without  a  law,  writ- 
ten or  unwrillen,  exjiress  or  implied. 
There  must  be  sume  law,  otherwise  there 
is  no  crime.  My  inii'iiireiaiion  ot  it  is 
that  the  laiiiiiai;e  '  hij;li  crimes  and  mis- 
demeanors '  means  '  offences  a!;ainsltlie 
laws  of  the  I'nited  States'  Let  us  see 
if  the  Constitution  has  not  said  so.  The 
first  clau.se  of  the  second  section  of  the 
second  article  of  the  Consliinlioii  re.idg 
thus;  'The  President  of  the  United 
States  sliall  have  the  jiower  to  snint  re- 
prieves and  pardons  for  offences  Mgainst 
tlie  United  States,  except  in  cases  of  iin- 
lieachmeiii.'  '  Offences  again.>t  the  tTni- 
ted  States'  woiihl  Include  '  cases  of  iin- 
peaelinieiit,'  and  Ihey  mii;ht  be  pardoned 
by  the  rresident  if  tliey  wi  re  iioi  ex- 
cepted. 'I'lieii  ca.ses  of  impeachment 
are, accord ini;  to  the  express  d(cl:ira  ion 
of  the  ('■uistiiuiioii  itself,  eii.se.s  of  of- 
fences nsainst  tlie  United  Slates. 

'  Still,  the  learned  inaiia^'er  says  that 
this  is  not  a  court,  and  lli.it,  whatever 
may  be  the  charai'ter  ■  f  tliis  biTly,  it  is 
bound  by  no  liw.  Very  ililTi  rei.t  was 
tlie  undeistaiidini;  of  the  lalhers  of  the 
Consiiiiitiuii  on  tills  snlijecl. 

'■  Mr.  .Maii;i,i;er  Ihilier.  Will  you  stall- 
where  it  was  1  said  it  was  boiuni  by  no 
law  'i' 

"Mr.  Stanliery.     '  A  law  iinio  itsell.' 

".Mr.  Manaeer  Butler.  'No  comn.on 
or  stalute  law'  was  my  hmsuau'e. 

"  Ml.  Curtis.  I  desire  to  refert  >tlie 
Rixlyfouith  nnmlier  of  The  Federalist, 
whieli  is  found  in  Dawson's  edit  lun,  on 
pa^;e4.'i:l:  '  The  remainini;  powers  which 
the  |ilaii  of  the  Conveiilion  a  lots  to  the 
.Senate,  in  a  distinct  eapacily,  ai'i' com- 
prised in  tlieir  participation  with  the 
Kxecutive  in  llie  appoint  in.  iii  i  •  ollices, 
and  in  their  judicial  character  as  a  court 
for  the  trial  of  iiii|ieaeliiiieiils,  as  in  the 
biisiness  of  appointments  Ihe  Kxecuiive 
will  be  the  principal  am'iit,  Ihe  pro- 
visions relating  to  il  will  most  piopcriy 


584 


IMriCArilMENTS. 


[chat.  XIU. 


s'laU'd   tliiit    the    acts    Llieieiii    foi'biddeii    shall    1m;   "  high  iiiisde- 
lucaiHirs." 


be  lii.soiisscd  in  tlic  i'x;iiniiiatlon  i)f  that 
(U'parlmi'iit.  Wc  will  tln'ivl'drc  eiinclucli^ 
tills  lii'iul  with  a  vii'W  of  tlie  jiullcial 
character  of  tin!  Sfiiatc'  And  tlicii  it  is 
di«cussi'ii.  Till'  next  posiliou  to  which 
I  desire  the  atleiilioii  of  iho  Senate  is, 
that  there  is  eiiouijli  wrilKMi  in  the  Coii- 
stituticjii  to  prove  that  this  is  a  Court  in 
which  a  judicial  trial  is  now  beiiiK  car- 
ried on.  '  Tlie  Senate  of  tho  I'uited 
States  will  liave  the  sole  power  to  try 
all  impeachnienls.'  '  Wlien  the  Presi- 
dent is  tried  the  Chief  Justice  shall  pre- 
side.' '  Tlie  trial  of  all  crimes,  except  in 
case  of  inipeaehnient,  shall  he  by  jury.' 
This,  then,  is  the  trial  of  a  crime.  You 
are  triers,  presidi'd  over  by  llie  Chief 
Justice  of  the  I'nited  Slates  in  this  ))ar- 
ticular  case,  and  that  on  the  express 
words  of  the  Constitution.  Tliereis 
also,  according  to  its  express  words,  to 
be  an  aeipiittal  or  a  conviction  on  this 
trial  for  a  crime.  '  No  person  shall  be 
convicted  without  tho  concurrence  of 
two-thirds  of  the  members  present.' 
There  is  al.so  to  be  a  judgment  in  case 
there  shall  be  a  coi  vicli(ui.  Judi;nient 
in  cases  of  inipeaci  nient  shall  not  ex- 
tend further  than  removal  from  oHice 
and  disciualilicat.on  to  hold  any  ofliceof 
lioiior,  trust,  or  prolit  under  th(!  United 
States.  Here,  then,  there  is  tlie  trial  of 
a  crimp,  a  trial  by  a  tribunal  desiKuated 
by  the  Constitution  it;  iilaeeof  court  and 
jury  ;  a  conviction,  if  guilt  is  jiroved  ;  a 
judgment  on  that  conviction  ;  a  punish- 
ment inllicted  by  the  judgment  for  a 
crime  ;  and  this  on  the  express  terms  of 
the  Constitution  itself.  And  yet, say  the 
lionorable  managers,  there  is  no  court 
to  try  the  crime  and  no  law  by  which 
the  act  is  to  be  judged.  'I'lic  honorabh^ 
manager  interrupted  me  to  say  that  lie 
qualihed  that  expression  of  no  law  ;  his 
expression  was,  '  no  common  or  statute 
law.'  Well,  when  you  get  out  of  that 
field  you  are  in  a  limbo,  a  vacuum,  so 
far  as  law  is  concerned,  to  the  best  of 


my  knowledge  and  belief.  I  say,  then, 
that  it  is  impossibh!  not  to  come  to  the 
conclusion  that  the  Constitution  of  the 
United  States  has  designated  impeach- 
able offences  ,is  offences  against  the 
I'nited  Slates  ;  that  it  has  provided  for 
the  trial  of  tliose  offences  ;  that  it  has 
established  a  tribunal  for  theptirpo.soof 
trying  them;  th.tt  it  has  directed  the 
tribunal,  in  case  of  conviction,  to  pro- 
nounce a  judgment  upon  tho  conviction 
and  intlict  apuni.shment.  All  this  being 
provided  for,  can  it  be  maintalni'd  that 
this  is  not  a  court,  or  that  it  is  bound  hy 
no  law  ? 

"  liut  the  argument  does  not  rest 
mainly,  I  think,  upim  the  provisions  of 
the  Constitution  eiuicerning  imiieaeh- 
nient.  It  is,  at  any  rate,  vastly  strengili- 
ened  by  the  direct  prohibitions  of  the 
Constitution.  'Congress  shall  pass  no 
bill  of  atlainder  or  ex  post  facln  law.' 
According  to  that  prohibition  of  the  Cmi- 
stitulion,  if  every  member  of  this  body,, 
sitting  in  its  legislative  capacity,  and 
every  member  of  the  other  body,  silling 
in  its  h'gislative  capacity,  shoulil  uniu-  ill 
passing  a  law  to  inmisli  an  act  after  tlio 
act  was  done,  that  l.iw  would  b"  a  nieie 
iiuUily.  Vet  what  is  claimed  byUielnui- 
orable  managers  in  beliaU'of  meiiiber.^of 
this  body?  As  a  Congress  you  c.iiiiiot 
crcat(>  a  law  to  punish  these  acts  ii'  no 
law  existed  at  the  time  they  were  done; 
but  sitting  here  us  judges,  not  only  after 
the  fact,  but  while  the  case  Is  on  trial, 
you  may  individually,  eac'i  one  of  you, 
create  a  law  by  himself  to  govern  tin) 
case. 

"  According  to  this  assumption,  llie 
same  Constilulion  whieli  has  made  ii  a 
bill  of  rights  of  till'  American  citizen, 
not  only  as  against  Congrc-s  hut  as 
against  llie  legislature  of  every  State  in 
the  rnion,  that  no  ex  p  'ntj^irln  law  >liall 
be  [lassed  —  tills  same  Constitution  has 
erected  you  into  a  body  and  empowered 
every  one  of  you  to  say  aid  iiiveniani 


J;  !)3.] 


IMl'KACHAULK   OI'KKNSKS. 


585 


Tlie  first  two  theoi-ies  are  iinpractieablo  in  tlieir  operation, 
inconsistent  with  otlier  hin<^if.i<i;('  of  the  Constitution,  and  onim-- 
iiiUmI  by  precedents.  It'  no  crime,  save  tieason  and  bribery,  not 
i(irbi(kUiii  l)y  a  statute  of  tiie  I'nited  Stales,  will  sni)port  au  iui- 
peaehment,  then  almost  every  kind  of  ol'liii.d  corruption  or 
oppression  must  go  unpuiushed."      Suppose   the  <  hief-.Iustice  of 


'•'"Is   tlio   sili'iici^   (it   llio   Btatuto- 

licloU   to  IlI'lllMMllCll  rOIK'lllsivO  ill  fllVKI' 

of  till'  imrlyiiiii  il  Coiinn'ss  liuvo  iiiiiclc 
a  Ic'u'i-liilivci  (li'cliiniticiii  iiiiil  ciiinin'ni- 
liiiii  of  llm  offonccs  wliiili  sliall  1"? 
iliMMiii'd  high  criiues  and  iiiisdo- 
iiii'iitKirs?  It  so,  then,  lis  Ims  Ix'cii 
truly  ri'iiiiiiki'd "  (citiiifj  Itiiwlc  on 
lh>\  Cciiislitiilioii,  ell.  xxix,  |).  273), 
"  tlio  power  of  iin|i<'iifliiiu'iU,  ex(M'pt 
as  to  th(>  two  i-xprcsscd  cases,  is  a 
iiimidelo  nullity,  and  the  parly  is 
wliolly  dispuiiislialile,  liowever  oiioi- 
iiiiiiis  may  lio  Ids  cornipliou  or  crinii- 
iiality.  It  will  not  lie  siillliient  to  say 
that,  in  tlie  cases  wliereaiiy  offenre  is 
imidslied  liv  any  statiiteof  tli(!  I'nili'il 
Slates,  it  m;iy  and  oiiRlit  to  111"  deemed 
an    iiiipea<'liable    offence.      Il,    is   not 

ant  fitcUiin  ;  If  1  cannot  fiiul  a  law  I  will 
make  one.  Nay.  it  lias  olollied  even'  one 
of  yim  with  imperial  [lowcr;  it  has  cna- 
lilcd  yon  to  say,  sic  culn,  sir  jiihin,  slut 
])ri>  riitiiine  volimlas;  I  am  a  law  unio 
myself,  by  which  law  I  shall  fjovern  this 
ca.se.  And,  moi'c  than  that,  when  eacli 
one  of  you  boforo  lie  took  his  [ilace  here 
called  (ind  to  witness  that  he  would  ad- 
minister impartial  justice  in  this  casi! 
accordlii!;;  to  the  Con.stltntion  and  the 
laws,  ho  meant  su'li  laws  as  he  iiilnht 
make  as  Im  went  alonf;.  The  C'onstitn- 
tioii,  which  bad  prohibited  anybody  from 
makiii<;  such  laws,  lie  swore  to  oliscrve; 
liiil  he  also  swore  to  be  governed  by  bis 
MWn  will;  Ills  own  Individual  will  was 
tlic  law  which  he  tlius  swore  to  observe  ; 
and  this  sjicclal  provlsiiin  of  theConsti- 
tullnn,  that  when  the  Senate  sits  In  this 
ciijiaclty  to  try  an  impcaehinent  the  .sen- 
ators shall  be  on  oath,  means  merelv 


every  offence  that  by  the  Constltiilion 
is  so  impeachable.  It  imist  not  only 
bo  an  offencM',  but  a  liiyli  erlni"  and 
niisdeiiieaiior.  Hesi<les,  there  uri) 
many  most  tlanranl  offences  wli.'eh, 
by  the  slatulisot  the  I'nited  Stales, 
are  imiilshablo  only  when  coiiiiidtlMl 
III  sjieclal  jilaiM  s  and  wit  hill  |ie(  uliar 
jurisdictions,  as,  for  insiaiice,  on  the 
Idsh  seas,  or  in  forts,  na\y  y.irds, 
and  arsenals  ceded  to  the  Iniled 
Slates.  Suppose  (he  offence  is  coiii- 
niitled  in  soiik!  other  than  tbeso 
privilei^ed  places,  or  under  circum- 
stances not  reached  by  any  statute  of 
the  I'liiled  Slates,  would  it  be  iin- 
peacbable?"  i  Story  on  the  Consti- 
tuliim,  5th  oil.,  §  7^0;  see  also  ibid., 
§7118.) 

that  lliey  shall  swc;ir  to  follow  Iht  irown 
individual  wills.  I  rcspec'tfiilly  submit, 
this  view  cannot  consisiently  and  [irop- 
erly  be  taken  of  the  character  of  this 
body,  or  of  the  duties  and  powers  In- 
cumbent upon  It. 

"  Look  for  a  moment.  If  you  plc;i.si  ,to 
the  other  provision.  'I'lie  same  .•earcli 
into  llic  r.nuli.sli  precedents,  so  far  from 
liavini;  made  our  amcstors  who  Iranied 
and  ailopled  the  Constitution  In  love 
with  them,  led  them  to  put  into  tlio 
Constitution  a  positive  and  absolute 
]irohlbltloii  ii'-tainsl  any  bill  of  attainder. 
What  is  a  l>ill  of  altainder  '!  Il  is  a  caso 
iH'fore  the  rarllameiil  where  the  Tarlia- 
nicnt  make  the  law  for  the  facts  they 
liiid.  I'.a(  h  legislator —  for  it  Is  in  their 
li_;;l.-lallve  capacity  they  act,  not  in  a  ju- 
dicial one,  -  is,  to  Use  the  phrase  of  the 
honoralile  manau'crs,  'a  law  unto  hlni- 
sclt,'  an<l  according  to  hisdiecrutiun,  his 


58(1 


IMI-KACHMKNTS. 


[<'II.\I'.  Mil. 


the  Unitefl  States  were  convieteil  in  a  Stale  court  of  ;i  feloi;y  or 
mi.sdoiiiuaiior,  must  lu;  remain  in  olKee  uninipeaelie*!  and  IkiM 
com  t  in  a  State  piison  ?  "^ 

'riic  term.  "  liij^li  Crimes  and  Misdemeanors,"  has  no  signiiicaiicc 
in  tlie  eonimoii  law  concerning  crimes  subject  to  indictment.  It 
can  lit)  found  only  in  the  law  of  Parliament  cand  is  the  technical 
teini  which  was  nsi-d  hy  the  Connnons  at  the  bar  of  the  I^ords  foi' 
centuries  before  the  existence  of  the  United  States. 

The  Constitution  provides  that  — 

" 'I'lic  .hul^fs,  both  of  till!  Siii)reine  and  Inferior  Courts,  shall  hold 
their  olliees  during  tiood  lleliavior." 

This  necessarily  implies  that  they  may  be  removed  in  case  of  had 
behavior.  Hut  no  means  except  impeachment  is  provided  for 
their  I'einoval,'^  and  ju<lic.ial  misconduct  is  not  indictable  by  either 
ii  statute  of  the  United  States  or  the  connnon  law." 

]n  llSO;}  I'ickeriiifj,  a  District  Judge  of  the  United  States,  was 
convicted  on  impeachment  for  his  ollieial  action  in  surrendcrinrr 
to  the  claimant,  without  re(juiring  the  statutory  bond,  a  vessel 
libelK'(l  by  the  I'uitcd  States,  for  refusing  to  allow  an  appeal  fnnii 
this  order,  and  for  drunkenness  and  profane  language  on  the  benili." 


'"  See  the  iirRuminit  of  MauaK'-i' 
Chiirli'8  A.  Wiikliffo  in  IVuk's  Im- 
pciu-liiiii'iiL  Trial,  p.  ;101). 

"  Arli.-ln  III,  S.'CliiMi  1. 

'-  Suili  iiifi.insiin.'  iirovlili'il  in  most 
SUile  c-ori'^tiliilidiis.     Infra,  S  !••'■ 

•'Hisliop's  Ciiiiiiiiiii  Ijiiw,  §  4()'2, 
citiiiji  Vnti's  r.  L.'iiisiiiH.  '••  iTnlms  (N. 


Y.),  2H2;  K.  c.  !)  Johns  (X.  Y. ',  ilT."); 
HariuMond  v.  lluwcll,  2  Mud.,  ilH; 
Floyd  w.  Uiirkcr,  12  T-oko,  2:),  2".. 

'*  I'icki'ihiK's  Trial,  \nnal9(if  Cna- 
firpss,  l«02-lHn,'l,  pj).  2(17,  2i;H;  il'iH., 
IHO.'I-lSOl,  pji.  27,  7Ci,  22i,  22.'),  -ii'.H, 
274,  271,  275,  29S,  315-;!G7;  su^jni,  §  IK). 


views  (if  what  is  polilii'  or  proper  under 
tin)  ciniiiM-tanei'S,  he  frames  a  law  to 
meet  the  case,  and  enarts  il  or  votes  in 
its  eniic'inient.  Accoiiling  to  the  doc- 
trine now  advanced,  hill.s  of  attainder 
are  imt  iiroliibited  liy  this  t'onstitution  ; 
they  ar"  only  sliglilly  niodilleil.  It  is 
only  necessary  fcir  tlie  House  of  liepre- 
senlalivcrt  liy  a  niajdrity  to  vote  aTi  ini- 
peadiinent  and  send  up  certain  articles 
and  hiivo  twotliirds  of  this  Ixxly  vote  in 
favor  of  conviction,  and  tluMo  is  an  at- 
iainckr;  and  it  is  done  by  the  Kanie 
process  and  depemls  on  identically  tiio 


same  principles  a.s  a  bill  of  attainder  lit 
the  KiiHlisli  I'arliament.  The  liiilividual 
will-*  of  the  legislators,  instead  of  tlie 
conscien  us  discliarjie  of  the  duty  of 
the  jad^'cs,  settle  the  result." 

To  the  same  effect  are  Trial  by  Im- 
peachment, a  lecture  by  Prof.  Tlio  idoro 
W.  l)wif;ht  to  the  students  of  the  Cnliua- 
bia  Liiw  School ;  Am.  Law  Ui ;;.,  N-  S., 
vol.  vi,  pp.  2.")",  2'i!l;  and  Minority  lie- 
p  irl  of  .lainrs  V.  \Vils(Ui  and  l"fi'leri«li 
fi.  W'uodbiidKe  on  first  propnsitiun  to 
impeach  Andrew  Johnson,  Ilou.se  Ue- 
poi  ts,  40lh  Congress,  Isi  Sess.,  No.  7. 


.;].] 


1.M1M;AC'IIAI!LK    OFKICNSKS. 


o87 


None  of  those  offL'iiscs  whto  iiidictaldc  by   tlic  (•(iiiinidii  1  i\v  or  1/v 

SMttltC. 

llmiiplueys,  a  Disti-kt  .In(lc;(\  of  the  I'nitiMl  St;it(s,  wns  con- 
viclcd  on  iinpeiiehineiit,  not  only  for  trt'iisim  lint  also  for  refn.sinjjf 
to  hold  court,  for  holdinj^  ollii'e  under  the  Confedei'ate  States  and 
for  iniprisouiiiLT  citizens  for  expressing  their  syniiiatliy  \\ilh  tiie 
liiion."'  The  manajfer  of  the  House  of  Jieiireseiitatives  who 
njienod  the  ease,  admitted  that  none  of  these  offenses  exeejit  the 
tna-on  was  in(hctalile."' 

Some  advocates  have  pone  so  far  as  to  maintain,  hy  a  misap- 
pHeition  of  a  teiin  of  the  common  law,  that  the  jiroceedint,fs  on 
an  inipraclniient  arc  not  a  trial,  lint  a  so-called  iinpicst  of  ollice, 
anl  that  the  iloii-ic;  and  Senate  may  thus  remove  an  olHccr  for 
any  reason  tluit   they  aiiprove.'"     'I'iiat  ("ongrcss   has  the  power 


''  Iliiniplin'.vs'  Trial ;  Tlir  Conjjn'S- 
.-ii)ii:il  fJlolM",  ;t7t,li  Congress.  2<1  Si's- 
sioii,  I'arL  4,  pp.  2942"'iHo3;  mipra, 
j  iKI. 

'''Malinger  Tniiii,  iliid.,  p.  21)13: 
"U  iu:iy  III!  supposed  that  tlio  llrsi, 
cliar^e  in  t  lie  articles  ol'  iiiipeaehment 
au'iiiist  William  Uloiinl.  was  a  sUiiul^ 
alile  ofTenee;  liut  on  an  aiMMuatc  ox- 
ainination  of  the  Art  of  ('<in),'res8  of 
IT'.it,  it  will  lio  tonnil  not  to  liavo 
Imm'ii  ho."  (Story  on  I  ho  (.'.mstilntion, 
•"illi  ed.,  ji  T'.l',),  note  2.)  In  Slate  r. 
(leorge  H.  HasiinKH,  Attorncy-Gen- 
eiMl  anil  olhers,  ;t7  Neliraskii,  %,  114; 
s.  r.,  ."i.')  N.  W.  Kep.,  774;  tlio  lourt 
saiil  that  an  inipeaehalilo  olTenso  was 
nol  nei-e.ssarily  iiulietahle. 

'"See  the  argument  of  John  Ran- 
iliilph  ill  Cliai-e's  Inipeaehnient  Trial, 
milim,  s  1)0;  infra,  ij'.U;  and  llio.se  of 
li' iijaniin  V.  Hiiller,  and  William 
I-awroiiee  in  Johnum's  Inipeai'hniont 
'i'rial.  vol.  i,  pp.  It:!,  12.'1  117;  opinion 
ol  Cliarli's  Siininer,  ihid.,  vol.  iii,  pp. 
'.il7  'Ihi.  '■  XIiii'li  has  been  said  in  tho 
riiiirseof  the  trial  upon  the  nature  of 
this  proeeediiiR,  and  tho  nature  of 
the  offenees  wlilili  ean  fairly  he  em- 
liruiod  with  the  terms  of  the  Consti- 


tution. In  my  ojiinion  tliis  hi«h  tri- 
bunal is  tho  solo  and  exelnsive  jiidj^p 
of  its  own  jurisdielion  in  siieli  ease.s, 
and  that  as  tho  Constitution  did  not  es- 
talilisli  this  proeediire  for  the  punisli- 
ment  of  crinio,  lint  for  the  secure 
and  faithful  ailinini-tration  of  tho 
law,  it  was  not  inl ended  to  eramp  It 
by  nn.y  speeilio  delinilion  of  liij?h 
eriines  and  misilenieanors,  but  to 
leavi!  eai'li  ease  to  bo  deliiied  by  law, 
or,  wliriinolilellai'd  to  be  deeidrd  upon 
its  own  i-irraiiislaneos,  in  the  pal  riot ie 
and  .judiiial  Kood  sense  of  the  rep- 
resentatives of  tho  States.  Like  the 
jurisdietion  of  ehaniery  in  cases  of 
fraud,  it  oii^ht  not  to  be  limited  in 
ndvanoe,  but  kept  open  as  ii  great 
bulwark  for  the  preservation  of  purity 
and  tldeliiy  in  tho  ailnilnisiration 
of  affairs,  when  unileiiiiiiie  I  by  the 
cnnniiig  and  low  jiraetiees  of  low  of- 
fenders, or  assailed  by  liold  ainl  high- 
handed usurpation,  or  detlanee;  a 
shield  fo'-  lie  honest  and  law-abiding 
oHleial;  a  sword  to  those  who  per- 
vert or  nbnso  their  powers,  teaeliing 
the  maxim  whieli  rulers  endowed 
with  the  spirit  of  a  Trajan  ean  liston 
to    without    emotion,    that,    '  Kings 


/iHS 


I.MrKACMMF.N'rS. 


[(;hai>.  XIII. 


to  ill)  so  may  In;  iidmitU'd.  For  it  is  not  liki'ly  that  any  (,'iiiirt 
woulil  hold  void  ooUatiMaily  a  judgiiiuntou  an  inipeaclnnent  whcio 
th(!  Suiate  had  jnrisdiction  over  the  person  of  the  eondennicil. 
And  nn(h)nhtedly  a  eourt  of  iinpeaeinnent  luus  the  juiis<licticm  to 
determine  wiiat  eonstitutes  an  inipeaeliahle  oilense.  lUit  tlie  judg- 
ments of  the  Senate  of  the  United  States,  in  tiie  cases  of  Ciiiuso 
and  Pt'i'k,  as  well  as  those  of  the  State  senates,  in  the  difl'erent 
eases  wiiich  have  lieen  i)el'ore  them  have  estahlislied  liie  rule  that 
no  ollicer  should  l)e  in)[)eaehed  for  any  act  that  docs  not  liave  at 
least  the  eharactei-istics  of  a  eiime.  And  puhlie  opinion  must  l)e 
irifmediahly  dehauehed  hy  party  spirit  hufore  it  will  sanition  any 
other  einirse. 

Iiiil)eaehable  offenses  are  those  whieh  were  the  subject  ol  im- 
peachment hy  the  praetice  in  I'arliament  before  the  Declaration 
of  Independence,  except  in  so  far  as  that  pi'aetice  is  repugnant  to 
the  languaj^e  of  the  Constitution  and  tiic  spirit  of  American  insti- 
tutions.'"^  An  examination  of  the  Kn<;lisii  precedents  will  show- 
that,  althout^ii  private  citizens  as  well  as  public  olliccrs  have  been 
impeached,  no  article  has  been  ])resented  or  s\istain(,'d  which  iliij 
not  char<fe  cither  misconduct  in  ollice  oi-  some  offense  which  w;is 
injurious  to  the  welfare  of  the  State  at  larire.'* 


can  bo  rnsliiiToiI  for  misconilucl.' " 
(Opinion  of  Si'iintnr  EiIiiumkIs  in 
Joioison's  Inipi'iicliiiicrit  Triiil,  vcl.  iii, 
p.  04.) 

'*  Si'O  nn  nrllclc  on  Iniptvii'liiiliio 
Offences  by  (i.  Willott  Van  Xcss, 
Am.  Liiw.  Review,  voi.  xvi,  p.  7!)8 ; 
Stiilor.  Georf;(>  11.  Htistin>;s,  .\tioi-iiey- 
Genernl  and  otheis  oniceis,  37  Ne- 
brasliii.  !)fi  ;  s.  c.  ,'■.,'■.  N.  W.  Hep.,  774. 

''••  Woode.^on's  Lectiiiis,  vol.  ii,  |)p. 
fiOl  r,(li>. 

"Tlie  Dnlie  of  Suffoli;  was  im- 
ppaelieil  for  liit;li  li'e.'isoii,  2K  II.  O, 
Seiil.  Jud.  r.'iri.,  '>'.)  (Ii  vol.  2  V.  151)7). 

For  iii^tii  treiisoii  in  suliverliiig  tho 
fundiiiiii'iital  iaw.-i,  and  iiilroduciiiK 
arbiti'ary  power,  Loi'd  Fimh,  Sir 
Kolierl  Berkley  and  Lord  Kliaffoi'd. 
2  Kush.,  GOG;  3  llnsli,  13(;5.  (^Vide 
Kush,  part  3,  vol.  1,  I3G.) 


The  nnl;(>  of  Suffolk  wasimppaehpd, 
'2H  11.  Ci,  for  llial  beinij  ambassador  lie 
coiisenti'd  lo  iho  delivery  of  divers 
towns  to  llie  Kiiif^  of  Frani'e,  williout 
thi!  privity  of  the  other  ambassadors. 
Art.  4  'rWeSeld.  3  vol.  2  P.  l.'iO?). 

The  Karl  of  Urislol,  that,  he,  beiiiK 
ambas.sador,  ^avofalse  informations  to 
the  kin-.     1  IJnsli,  2411. 

That,  ho  did  not  pursue  his  instruc- 
tions.    Art.  i,  1  linsh,  -'M. 

That  he  pursued  his  embassy  fov  his 
own  piolit  oidy.     Art.  4.    1  Uusli,  li-'iO. 

Cardinal  Wolscy,  that  ho  nuulc  a 
treaty  between  tlio  Topi!  and  the 
Kiiij,'  i>f  France,  when  ambassador  to 
H.  K,  without  th(^  privily  of  his  kiii«. 
4  Inst.  SI),  l.-,G. 

Tliat  he  joined  himself  with  tlio 
kiuK.     4  Inst.  1)0. 

The  Earl  of  Bristol  was  impoaclied, 


§  93.]  IMPEA(UtABLE  OFFENSES.  .'JH9 

In  tliis  class  of  cases,  wliich  rest  srt  mucli  in  the  discretion  of 


'2  Car.,  t lint  lio  coiinHclled  ngaiiist  a  vvnr 
wltli  Spain,  wlion  that  king  nffnuiti'd 
us,  to  thu  (liHliononr  and  di>(i'iiii>'iit  of 
Iho  realm.     Art.  K.     1  lliisli,  'i.")0. 

Tliat  111"  advlst'd  a  loli-ration  of  the 
fiapistH.     1  Uiish,  2.")1. 

'I'hal  hcriMliM'il  tho  Ulnt,'  to  popery. 
1  Itii^M.  -i.Vi.  'Jll-i. 

.^[i('llal'l  di«  la  Poole  was  imi)ea('hed, 
that,  lie  iiicileil  tlie  kiiif?  to  a<M  a^;aliist 
the  advice  of  I'.niiiuriciit.  ScUI.  .Jiid. 
I'aii.,  'jr;  (It  vol.  '2  P.  ].">!)(!. 

The  Spencers,  that  they  gave-  liad 
counsel  to  the  kintJ.     4  Inst.  .51. 

Thi^  liiirl  of  Orford,  that  he  ad- 
vised a  prejiidieal  peneo.    8  May,  1701. 

Lord  Finch,  that  he,  lic'ins;  speaker 
of  the  coMinions,  refii.sed  proceedings 
in  the  house. 

The  Duko  of  Buckingham  was  im- 
peached, for  that  he,  heing  adndral, 
iiegli'cted  the  safeguards  of  the  sea. 
Uush,  308. 

The  Earl  of  Orford,  that  lie  haz- 
aiileil  the  navy,  and  had  neglected  to 
take  .ships  of  the  enemy.    8  May,  1701. 

Michael  de  la  Poole  was  impeached 
that  he  being  ('hancrllor  acted  con- 
trary to  his  duty.  .Seld.  Jud.  Pari.,  '2(! 
(It  vol.  2  P.  l.Wfi). 

Lord  Somers  that  he  ratilied  a 
peace,  not  a|iproved  by  the  partii'S 
<iincerned,  luider  the  great  s(>al.  16 
May,  1701. 

'L'liat  lie  put  the  great  seal  without 
wiiiianl.     Ibid. 

.\iid  to  a  1  lank  <'ommission.     Ihid. 

.Michael  de  la  Pooh^  was  impeached, 
that  he  purchased  lauils  of  the  king, 
which  he  had  proenred  to  be  surveyed 
under  their  value.  Seld.  Jud.  I'arl. 
•21  111  vol.  '2  P.  l.'iOfl). 

For  a  fraudulent  purchase  from  the 
king.  Seld.  Jud.  Pari.,  '20  (3  vol.  2 
P.  1. ")!)«.) 

Sir  John,  Lord  Somers.  16  May, 
1701. 


The  Duke  of  Huckingham  was  im- 
peacheil  for  plurality  of  olUues.  '2  Car. 
Kush  ;)(ir,. 

The  Earl  of  Orford,  for  exereising 
incompatibh-  olllci's.     8  .May,  1701. 

So  the  Lord  Halifa.t.     :)  June,  1701. 

The  Duke  of  liuckiugham  was  im- 
peached forgi\ing  11  inc'dicine  to  the 
king  without  the  advice  of  the  iiliysi- 
cians,     Uush,  It.'il. 

So  the  Spencers,  fatiicr  and  son, 
weri"  impeached  for  that  they  pre- 
vented the  great  men  of  the  realm 
from  giving  their  counsel  to  the  king 
except  ill  their  presence.     4  Inst.  .111. 

Tliat  they  put  good  maglstratea 
out  of  olTlce  and  advanced  bad.     Ibid. 

The  Earl  of  Orford  was  impeaclied 
that  ho  encouraged  pirates.  8  May, 
1701. 

Sir  a.  Mompes.son  was  imjieachod 
for  the  procurcmeui  of  piiicnis  of  mo- 
nopoly. 18  Jac.  liusli.  -21.  '27.  ,Seld. 
Jud.  Pari.  HI  (II  vol.  2  P.  ir.llH., 

Loid  Chaurelliu'  liacon  was  im- 
peachi'd  for  bribery.  18  Jac.  Rush, 
28.  Seld.  Jud.  Pari,  lil  (H  V(d.  '2  P. 
1.5!)0i. 

The  Duke  of  Buekingham,  for  the 
.sale  anil  purchasi>  of  oldces.   Hush,  111)4. 

The  Lord  Fiiicli,  for  urdawful 
methods  of  enlarging  the  fon'st,  when 
assistant  to  the  justices  in  eyre.  Art. 
U.  ridi'  IJusli,  part  3,  vol.  1,  1117. 

For  threatening  other  judges  to 
subscribe  to  his  opinion.  Iliid.,  ,\rt. 
4,  5,  6. 

For  delivering  opinions  wliicli  he 
knew  to  b('  contrary  to  Imw.  Art.  7. 
Ibid. 

For  drawing  the  business  of  the 
court  to  his  chamber.     Art.  8.    Iblil. 

So  an  Impenc'iment  was  exhibited 
for  several  extortions  and  deceits  to 
the  iiiiblie.  Seld.  Jud.  Pari.  1!)  (3 
vol.  2  P.  l.")04,  1.5imi. 

An  Article  was  exhibited  against 


C'.iO 


IMl'E-VCHMKNTS. 


[f'HAP.  xni. 


tilt'  Senate,  the  writer  would    lie   rawli   wlio  were  to  attenii)t  to 
])ri'scril)i'  the  limits  of  its  jiulsdietioii  in  this  resjieet.''"' 


I'iiriliiinl  \Vols(>y  for  exercising  li-j^u- 
tivi'  aullioiity  to  llic  iiri'jiiilicc  of  llic 
iiiitlioiily  luul  oppri'sslou  of  onllimrlcs 
mid  houses  of  nlittion.      t  Inst.  H9. 

So  tiyaiiiHt  llu)  Earl  of  Oifonl,  for 
t'onvorting  tlio  luiblic  money  t.o  liis 
own  use,  wlllioul  account.  K  May, 
1701. 

So  an  iinpeaehnienl  was  aj,'alu8t 
tlio  Eail  of  UrI'oiil,  that  he  procured 
from  tlie  liiiii,'  to  liinisolf  exmliitant 
giants  in  lands  and  money.  H  Hay, 
1701. 

So  against  Lord  Soniers.  1(1  May, 
1701. 

For  taliing  money,  &v.,  from  a  for- 
eign prince  without  giving  an  account 
tor  it.     8  May,  1701. 

For  selling  goods,  taken  as  admiral, 
for  his  own  use,  without  m'countlng 
for  a  tcntli  to  others.     H  May,  1701. 

Lord  Halifax,  forolitaining  grants  of 
estates  forfeiti'd  for  rel)ellion.  0  June, 
1701. 

For  obtaining  grantsof  money  when 
there  was  a  war  and  heavy  taxes.  Ihid. 

.\nd  grants  out  of  the  king's  woods. 
Ibid."  Comyn's  Digest,  rarllamenl 
L.,  28-3!). 

Dr.  bacheverell  was  impeached  for 
preaching  a  seditious  sermon.  How- 
ell's S.atc  'trials,  vol.  xv,  p.  i. 

The  Earl  of  Clarendon,  for  falsely 
allirmiiig  tliat  Charles  II  was  a  papist, 
for  introducing  an  arbitrary  govern- 
ment into  tlio  king's  pl;inlatious,  and 
for  giving  biid  advice  concc-rning  tlii^ 
numu'uvres  of  the  lleet.     Ibid.,  ^■ol.  vi, 

pp.  ;i  1(1  :i;i:). 

The  Earl  of  Orrery,  for  raising 
money  by  his  own  authority  from  the 
kings  suliji'cts  in  Ireland.  Ibid.,  p. 
91,'".. 

Sir  Adam  Blair  and  others  with  him, 
for  disj.erslng  a  seditious  and  treason- 
able paper.     Ibid.,  vol.  xii,  p.  1207. 


Lord  Chancellor  Maedeslleld,  for 
selling  Ills  appointments  to  mastership 
in  cljancery.     Ibid.,  vol.  xvi,  p.  7(17. 

Warren  Hastings,  for  oppressive 
go.ernment  in  ludiu,  and  extortion 
upon  the  natives  there.  (Burke's 
Works. ) 

Viscount  Melville,  for deiiositingt hi' 
publico  funds  with  a  private  banker, 
where  it  was  suspected  that  he  used 
them  in  speculation.  Howell's  Stato 
Trials,  vol.  xxix,  p.  Oil). 

■-'  The  constitution  of  Alalianui  au- 
thorizes lnii)eachment  "for  willful 
lu'glecl  of  duty,  corruption  in  ollice, 
habitual  drunkenness,  ini'ompetency, 
or  any  olTcmso  Involving  moral  turpi- 
tude while  in  olTlce,  or  committed 
under  color  thereof,  or  connocfed 
therewith"  (.\rt.  VII,  See.  1).  Tliat 
of  Arkansas,  "tor  high  crimes  and 
nusdeineanors  and  gross  misconduct 
in  ofilce"  (Art.  XV,  Sec.  1).  That  of 
Colorado,  "lor  high  crimes  or  misde- 
meanors, or  nialfeasauce  In  ollico" 
(Art.  XIII,  Sec.  2).  That  of  Iowa  for 
any  misdemeanor  or  malfeasance  in 
ollico"  (Art.  Ill,  SiM'.  20).  Tliat  of 
Kentucky,  "  for  any  misdemeanors  in 
olTlce"  (Art.  LXVIII).  That  of  Loui- 
siana, "tor  high  crimes  and  misde- 
meanors, for  iKmfeasancc  or  iiiid- 
feasance  in  ofilce,  for  incompetencv, 
for  corruption,  favoritism,  exlorli'ni 
1  oi)pression  in  ollice,  or  for  gnK-^a 
misconduct,  or  luibituiil  drunkeune-s" 
(Art.  10(1).  Tiiat  of  Michigan,  "for 
corrupt  conduct  in  ollh'c,  or  for  crimes 
and  ndsdemeanors"  (Art.  XII,  Sec.  li. 
That  of  Minnesota,  tlie  s.-inie  (Art. 
XIII,  Sec.  1).  That  of  North  Daliotii, 
"  I'or  habitual  drunkenness,  crimes, 
corrupt  conduet,  or  malfeasance  or 
misdemeanor  in  olTlce"  (.\rt.  XtV, 
Sec.  lOGi.  Thatof  South  Dakota,  "for 
drunkenness,  crimes,  corrupt  conduct. 


§03] 


I.M  riCACHAULE    OKl'lCNSKS. 


fif>l 


All  imiioiiL'luiblo  offuuse  iiuiy  uoiisUt  of  treason;'"  hriljcTN' ;'''2 
(ir  ;i  lircarli  i>f  ollicial  duly  liy  iniilft'iisiiiu'e  or  inisfcas  iiico, 
iiK  111  liii^r  iKiiuluct   such   as   (Irunkuiiness,'^''  wlieii  habitual   or  lii 


<ir  Mi.'iiri'asiiiicn,  or  llll^<(l<'mollnor  in 
onicf'  XVI,  K.,'c.  3 1.  Tluit  of  \Vo8t 
Virnliiiii,  "for  miil-iidniiTiistriitlon. 
(•(irni|iti()U,  incompetency,  groRS  iin- 
iiidiiilily,  neglect  of  <luly,  oriiny  liiuli 
Clime,  or  miwlemeanor"  (Art.  IV,  See. 
',)i.  Tlie  oilier  Stale  <'on.stiliitioii«  pre- 
sent in  lliirt  roHpect  siiliHlaiiliiil  sinil- 
liirity  lo  llie  Const iliil  ion  of  the  Viiitctl 
Sliiti's.  In  Cliili,  cabinet  olllcers  niny 
lie  iiiipeachcil  for  "IrenKon,  coiriiption 
in  olllce,  iiiisapproiiriatlon  of  jiulilii? 
fiiiiils,  Buljornation,  violation  of  the 
coii-litiition,  impeding  tlio  exei'iitiim 
of  the  laws  or  failuro  to  cxecuto  tho 
sniiie,  and  for  gravely  compromisinK 
the  wifi'ty  and  honor  of  tho  Nation" 
(Art.  ",)'2). 

"  Con.stitiitioii,  Article  II,  Section  1. 

---  Il.id. 

-■'  Piclieriuf^'H  Impeachment  Trial, 
Huprn,  <)  '.)(•,  infra,  ij  '.)1.  Cox'  Impoach- 
Micnl,  Trial,  hifni,  §  Dl,  and  .Vppendlx 
lo  (liiH  volume;  Dotliin's  Impcacii- 
iiieiit  Tri.il,  .Vppeiidix  lo  tliis  voliimo. 
Ill  ISotliin'rt  Impeachment  Trial,  de- 
niurrers  to  tlio  follo\vlu(,'  Articles  were 
oveiriiled  :  - 

"That  the  Haid  Theodoslus  Bolliln 
was,  on  the  131  h  day  of  .Taiiiiarv,  IHItO, 
ever  since  has  l)i>en  and  still  is  judge 
of  tlm  tliirly-si'cMiid  judici;il  district 
of  tlio  stale  of  Kansas,  and  tliat  llio 
.said  Thoodosius  Uoliiiii,  wlulo  occiiiiy- 
ing  tho  ollicial  position  as  judge  of 
said  judicial  di.slri<'l,  unniindfiil  of 
tlie  high  duties  of  his  ollii-e  and  llio 
iligtiity  and  proprieties  thereof,  has 
been  repeateiliy  intoxicated  in  public 
places  tlu-ougliout  Kai<l  judicial  dis- 
trict, to  tho  manifest  scaiulal  of  the 
administration  of  justice,  by  meaiia 
whereof  the  sai<l  Tlieodosius  Botliin 
lias  brought  l.'s  liigh  ollice  as  judgo 
lis  aforeaiiid,  into   contempt,  ridicule 


and  disgrace,  to  tlie  great  scandal  ot 
all  good  citizens;  whereliy  said  Tlieo- 
dosius liotliin,  judge  as  aforesaid,  was 
guilty  of  high  misdemeanors  in  olTlce, 
which  nro  sot  forth  in  tlio  several 
specitlcations  hereinafter  written,  in 
Bubstaiice  and  elTiMt,  tliat  istosay: 

'■  SprrificiUinn  h'irnl :  In  this,  lliatoD 
tho  streets  and  in  pulpjic  pl.'U'es  In 
tlie  city  of  Hpriiiglleld,  ill  tlie  county 
of  Seward,  in  said  district,  tlie  said 
Theodosiiis  liolkin  was,  on  or  abcmt 
tho  lirst  day  of  April,  iH'.ld,  intoxi- 
cated, and  under  tho  Inllueiice  of  in- 
toxicating liiiuors";  with  nine  simi- 
lar specillcat  ions.  ( notI<in's  Impeach- 
ment Trial,  Art.  I,  pp.  ,11^:12.) 

"  That  tlie  said  Theoilosius  Rolkin, 
judge  as  afoies.iid,  iiniiiiiidfiil  of  tho 
high  duties  of  his  office  and  the  dig- 
nity and  lu-oprielies  tiiereof,  whilo 
engaged  in  holding  througliout  his 
.said  <li8trict,  in  the  various  counties 
thereof,  tlie  terms  of  his  <'owit,  as 
nvpiiri'd  bylaw,  and  during  the  limes 
of  lioldiiig  the  same,  has  been  re- 
|ie;iteclly  intoxicated  and  under  tho 
inlluence  of  inloxiealing  lii|Uors,  by 
means  whereof  the  said  Theodosiiis 
Hotkiii  has  brought  his  high  olliee  us 
judgi"  as  aforesaid  into  conlempt, 
riilicule  and  disgrace,  to  the  nianit'est 
si'andul  and  danger  of  jiislice,  and  to 
I  he  scandal  (if. I II  gin  id  citizens  ;  where- 
by the  said  Theodusius  Itoikin,  jmlgo 
as  aforesaid,  was  guiliy  of  high  mis- 
demeanors ill  olTlce,  wliicli  are  set 
forth  in  the  sever.il  specillcat  ions 
hereinafter  written,  lu  substunco  and 
effect,  that  is  lo  say  :  — 

"  Swcifirnlion  First:  In  this,  that 
tho  said  Theodosiiis  Botiiin,  wiiilo 
holding  tho  January,  WM,  term  ol 
tho  district  court  of  Seward  county, 
la  suld  distrlut,  was  Intoxicated,  and 


AOi] 


IMl'KACIIMKNTS. 


[CIIAI'.  xm. 


tllf 


'I'formiiiico   (if    olliriiil    duties,   jfroas  ituk'nency,''''    and   ]ii'i 


-<  In  (A)x'  ImpoachiiH'iil  tiial  in 
MiiMii'-olii,  a  (luiiuiiri'i'  to  tlic  follov- 
iiii;  iirlii'li'  wiiH  tivi'fi'iiloil : 

••Tli'it.    K.  SI.   .Illlifll   Cnx,   b.'illt,'  u 

.Iiiilj.'!?  of  ihc)  DImiict  C.mrl  nf  lln' 
iSliUi"  1)1'  Miniic'sulii,  in  iinti  fur  llic 
iiinlli  j:iilii'iiil  ilisii'ict,  uniiiiiiijl'iil  nf 
his  iluiii'K  lis  siii'li  jikIjjc,  ami  of  tin' 
(lij-'nily  of  Ills  ollli'i',  mill  in  vIhImIIoii 
of  till'  ('DMsliliilion  iiiiii  lliii  Sliild  of 
Minncsola,  diii,  iil  tin'  Coiinl.v  of 
lliiniHry,  In  said  SImIi'.  to  wil  :  On  tin' 
lltli  (lay  of  ()rlnl„.r,  A.  1).  Isv],  ,1,.. 
iiii>an  liinisi'lf  in  ii  li'wd  anil  ilisniari'- 
fiil  niannor,  in  tliis,  lliiil  hi>  illil  tlii'ii 
ami  tiiiTi' resort  toa  liouscof  ili-fanic, 
ko|it,  for  tli«  pur|iosi's  of  proslilulion, 
In  company  witli  a  proslituti-,  wlmso 
name  is  unknown  to  tlio  Honso  of 
lli'pnv-i'nliitiM's,  anil  did  tlii'ii  and 
thi'i'i'  linvdly,  liiscivionsly  I'oh.iliit  and 
aKsoi-iati'  with  said  woman,  wln-reliy 
hi',  thi'  Haiil  E.  St.  .Inlii'n  Cox,  was 
guilty  of  a  niislii'havior  In  olllci',  and 
of  I'riiiiosuml  niisdiinii'anors  in  ofllci^ " 
(PP.  a  I,  im>. 

In  tlio  saini'  caso  a  di'nuirri'r  to 
till'  following,' ••irticlo  was  ;;l  Arst  also 
overrnU'd ; 

"'I'hal  K.  St.  Julie;,  C-in  lii-inK  a 
Jnil^'i"  of  the  Di.striet  ('i>iirt  of  the 
Stale  of  Xrinno^ota.  and  for  tho  ninth 
jndiei.d    di.^liiel,    iinniii'.dfnl    of    his 


nn  ler   the    ijillnenee   of    into.\ieatinK 
liipiors. 

'•  Sj>i'rijiriili())i  Si'coiiil :  In  this,  that 
tlio  .said  Theodosiiis  liotkin,  wliile 
holdinj;,  diiriiif?  thi>  llrst  week  in 
March,  IKOO,  an  adjonrneil  term  of 
tile  Jaiinary,  IH'JI),  term  of  the  district 
I'oui'l  of  .said  Seward  county,  was  in- 
toxicated, and  nnder  the  Inlhionce  of 
intoxicating  Ihinors"  ;  with  nine  simi- 
lar speeillcations.  (Hotkin's  Impeach- 
ment, Trial,  Article  II,  [ip.  .nii-Ht.) 
"That  the  said  Theodosivis  Botkin, 


duties  as  Hiich  judge,  and  of  llie  iIIl;- 
lllly  and  )iroprieties  of  his  said  oHlco, 
and  in  violation  of  the  laws  of  tlio 
Stale  of  Minne.-ola,  did  at  divers 
times  sincn  the  lili  day  of  Jannary, 
A.  1).  1H7H,  at  sundry  places  in  the 
i^aiii  Stale,  demean  hiinsi  If  In  a  lewil 
and  dis;,'raci  fii't  mamier  In  this,  tliat 
lie,  the  said  K.  Si.  .Jiillen  Co.\,  did 
then  and  there  freipicnt  lionses  of  111- 
faini',aml  consort  witli  harlots,  wliero- 
hy  he,  the  said  K.  St.  Jnlion  Cox,  has 
hroiight  liimself  and  his  liigh  olllce 
into  disrepnto  to  tho  niiinife.>-l  injury 
of  the  morals  of  the  youth  and  j^ood 
cilizcnsiif  the  Slalo  of  Minncsola,  and 
disgrace  of  tho  administration  of  jus- 
tice, and  is  thereby  guilty  of  mislio- 
haviiirin  olllce;  ami  of  misdcineanors 
In  olllce."  ill.id.,  |ip.  21,  IC.l,  Ifil, 
171,  .'I'iT. )  Upon  the  decision  of  the 
(liMiinrri'r  to  this  arlii'le  speeillcations 
of  tho  limes  and  places  where  the 
offenses  were  committed  were  ordereil 
by  the  Senate  and  furnished  by  tho 
managers.  It  was  further  ordnred 
that  should  no  such  speeillcations  ho 
fnrnislied  no  testimony  in  support  of 
the  article  should  be  I'eceived.  After 
the  spccKleal  ions  were  furnished  tho 
Senate  voted  "that  the  objections  of 
the  res|i)ndciit  be  sustained  as  to  the 
twentieth  artnle."    ;Iliid.,  p.  ,")'27. ) 

judge  as  aforesaid,  nnmindfiil  of  llio 
high  dniies  of  his  olllco  and  the  dig- 
nity and  proprieties  tlieriHif,  while 
engaged  in  holding,  throughout  his 
siiid  district,  in  tlie  various  counties 
tliereof,  the  terms  of  his  I'ourt,  as  re- 
i|uired  by  law,  and  wliilo  sitting  on 
the  bendi  as  judge,  has  been  re|)eal- 
odly  into.xicated,  and  under  tho  in- 
flnenco  of  intoxicating  liquors,  by 
moans  wh(>rcof  the  said  Thoodosias 
Botkin  has  Imnight  his  high  olTlce  as 
judge    as    aforesaid    into    eontompt, 


§•■'«•] 


i.Mi'i;.\<iiAi!i.K  (irri;ssi:s. 


nm 


iiiiU',    obsut'iiity,    <>i'    ollii'i'     liiiiniiiiw, 


iiscil 


ill     tiif 


(II 


sclil 


litre 


l'lilirii|i>  iiimI  ilis^jiiii-i',  l(>  till'  liiaiiirrst 

!-i'iiiJiliil  mill  ilaiixi'r  tii   tin'  iKliiiiiil'-- 

':iilliiii   of  jiiHtlri',   aiid  til  till'  ^!ri'al 

mini  ipf  (ill  Kdoil  oltlzi'iis;  wlini'liy 

KUllI      'rili'lllldsillH      Dlltklll,      Jllll^'ll      (IB 

iiliiri'.-djil,  WiiH  K'liUty  111'  lil^li  imIhcIc- 

llli'JIIKIIS  111  linilM',  Wllll'll  lllll  SI'I  I'lirtli 
ill     till'     f^'-vcnil    H|li'i-|llr(lllllMS     lllTliIll- 

iifliT  wi'illiii,  In  sulistiiiicii  mill  cITi'i't, 
tliMl  Ih  to  s(iy  ; 

"  Siiif'JiritlioH  Flrxl :  In  I  Ills,  timt. 
Ill"  Mild  Tlll'OllOHiUH  Jiotklii,  wliiln 
liiililliiK  the  June,  1«'.)0,  term  of  the 
ili>lrirt  court  of  Sowai'd  ciiiiiity,  in 
mill  distili't,  mid  wliili'  sitting  on  tin- 
I" mil  lis  jiiilf,'!',  WHS  iiiliixii'iili'il,  iiiiil 
uiiiliT  till'  iiilluoiicc  of  intiixii'iitiiiK 
lii|llorH";  Willi  tlll'Ki)  sinilllll' Hpi'i'lllril- 
tiiiiis.  (Kotkin's  Ini|ioaclinii'iit  Tiiiil, 
Ailiil.'III,  [1.  :l».  I 

"I'iitit  llii'  Hdid  Tlii'odosliis  I!i)tkin, 
juil^o  im  iit'oi'i'siiid,  uiiiiilnilfiil  of  tin' 
lil^li  diitii^H  of  Ills  ollii'i)  luid  till-  dig- 
nil  ii'S  mid  i)ni|ii'i('li('8  tlicroof,  lins, 
.-iiirii  mid  diiiiiiK  Ills  snld  torni  of 
nMi.i',  lii'i'ii  mi  iiiililliiiil  iisiT  of  Intox- 
ii-.-ilinu  liquors  to  siirli  an  cxi'i'ss  as 
III  liir,'i|iai'iliiti'  liliii  for  a  I'li'dr-iiiindi'd 
iliM'hm-j,'ii  of  Ills  Kiiid  jinliciiil  fiinc- 
limis,  I'V  nifiins  wliorcof  tin'  said 
Tlii'iiilosiiis  liiilkili  lias  brou^lit  his 
lii.'li  oMiiM"  as  jiiil^ji)  as  al'uri'said  into 
I'l'iiii'iiiiit,  and  ridii'uii)  and  disf^nici^ 
111  I  111'  iiianirest  srandal  and  uri'iil 
li.iHurr  of  till)  adniinistration  of  Jus- 
tin, and  to  till"  Hri'at  srandal  of  all 
pHiil  rili/.i'iis;  whiM'eliy  till' said  Tlii'o- 
ilii>iim  JJotklu,  jiiiltio  as  aforesaid, 
wiis  unilly  of  a  liijjh  inisdoiiiomior  in 
oilii'i'."    (liolkin's  Inipi'iii'linii'iit  Trial, 

An.  vri,  |..  :!i;;  ibid.,  pp.  iir,  21;-) i. 

Ill'  was  lliially  ai'i|iiitti'd. 

In  IliKsanio  caso,  di'iniirrors  to  llu- 
fiillowiiiK  ai'lii'lt's  wi'ri'  sustained  :    - 

■'Tliat  the  said  Tlieodosiiis  Bol kin, 
juilne  as  alori'.saiil,  uiiiniiidfiil  of  tlie 
lii;;li  duties  of  hisolliee  mid  the  dij;. 
uiiy  and  jnopriotiea  thereof,  on   the 


•2'.Mli  day  of  AiiKilht,  Is'.Ml,  nn  tlni 
streets  and  in  piililie  plares  In  llie 
city  of  I,eiili,  ill  Wlihita  loiinly,  was 
drunk  and  ninlir  the  liilliieni'e  of  in- 
loxiratin^'  lii|iiors,  and  was  eii;,'a;,'i'd 
III  II  dninketi  and  luil-ileroiis  quarrel 
on  said  streets  and  In  said  piiMIe 
plaees,  and  \mis  then  and  ihere  so 
disorderly  that  ho  had  to  lie  taken 
iiff  said  streets  by  the  sherilT  ot  siiid 
eouiity  to  prevent  u  fiirllier  dlslurii- 
miee  of  the  peaeo;  by  liiemis  where. 
of  the  said  Theoiliislus  Holkin  has 
brmulil  hi-  high  olliee  as  judge  as 
at'orrsaid  into  eiinti'inpt  and  ridii-ule 
and  disgraee,  lo  the  great  seandal  of 
all  good  eltizens;  wliereby  said  Tlini- 
dosiiis  liolkin,  Judge  as  afoies.iid, 
was  giiilly  of  high  niiMlenn'aiiiirs  in 
oflli-e."  (Trial  of  Tlniidoslus  Hutkin, 
Art.  IV,  p.  .'It.) 

"  That  the  said  Tlieodiisius  Hi  ill;  in, 
jiidgo  as  aforesaid,  uniiiindfiil  of  the 
high  duties  of  his  ofllee  and  the  dig- 
nity and  proprieties  tlieieof.  ami  ni'l- 
withslmidiiig  his  duty  to  enl'mie  the 
laws  to  proiiiliit  the  sale  of  inlo\i.-at- 
iiig  iii|iiiirs  in  lliis  State,  exeipt  "for 
inedieal,  siienlilii',  and  ineelianiral 
purposes,  lias  during  Ids  said  liTiii 
of  olTlee  knowingly  and  wiilfully  fre- 
(pienteil  plares  within  and  ihiouglinut 
Ills  said  jiidieial  distriet  where  iiituxi- 
ealing  liiiuors  were  sold  ill  violation 
of  law;  by  ineaiis  whinoof  the  said 
Tii(!oilosius  IJolkin  has  brought  Ids 
high  olliee  as  judge  as  aforesaid  into 
eonlenipt,  ridieule,  and  disgrace,  and 
has  encouraged  tin;  violaliiin  of  law, 
III  till'  great  scandal  of  all  gnml  citi- 
zens; wliereby  said  Tlieodn-ius  liol- 
kin, judge  as  aforesaid,  was  giiiiiy  of 
liigli  inisdeini'aiiors  in  olliee,  wliidi 
are  set  forth  in  Ihe  several  specilira- 
lioiis  liereinafter  written,  in  substance 
mid  elTcet,  that  is  to  ."say  : 

"  Spcrificdtiim  h'irnl :  In  this,  iliau 
the  said  Theodosius  liotkin  did,  on  or 


594  IMPEACHMENTS.  [CHAP.  XIIU 

of  1111  official  function,  which  tends  to  bring  the  office  into  dis- 


ttbout  tho  10th  day  of  Jauunry,  1890, 
iiud  on  sundry,  and  divers  other  days 
thi'roal'li'i',  knowingly  and  willfully 
froi|ueiit  till'  drugHtori"  of  Shortman 
&  Tici',  iu  tho  city  of  Springtleld,  In 
said  disli'ii't,  ho,  tlic  said  Thcodosius 
Botkin,  Ihi'n  well   knowinn   that  tho 


said   ShorlMian   A    Tl 


I'ro   at   tho 


time   si'lling   iiitoxic!  ling   licpiors    in 


violiitii: 


:>!  hi 


'•  Sin'cifii'iir  )i  Sefutid :  In  this,  thiit 
tho  saivl  Tliridosius  Uolkin  did,  on 
or  ahoul  tho  toiitli  day  of  June,  IHIM), 
and  on  sundry  and  divers  otlnu'  days 
tlnMi'iillcr,  knowiuKly  nnd  willfully, 
fri>c|U('hlly  visit  thcdrun  s'.orool'.I.  A. 
L.WIllianis,  ill  siiid  clly  of  Siiriiiglirld, 


ho,  till'  siiid  Tlwodosius  l!o(l 


then 


well  knowing  that  tlio  said  .1,  A.  L. 
Williams  was  at  tho  tiiiio  soiling  iii- 
toxloaling  liijuors  in  violation  of  law. 

"  Sjifrljif  :li{iii  Thirii:  In  this,  that 
tho  said  Tlioodosiiis  lintkin  did,  on  or 
ahoul  tlio  lOlh  <iay  of  Apiii,  18',I0,  nnd 
on  sundry  and  divorsotlionlays  Ihoro- 
attor,  knowingly  nnd  willfully  fro(|uont 
ami  visit  a  oortain  disri'[i\itahlo  iilaoo, 
or  'joint,'  in  tho  olty  of  Ulyssos,  in 
said  <iistrict,  ko|il  liyono  ,1.  W.  Mail- 
dox,  olhorwiso  called  '  liill '  Madiiox, 
he,  tho  said  Tln'odosiiis  I'.iilkiii,  then 
woll  knowing  that,  tho  saiil  Jladilox 
was  at  the  time  soiling  intoxicating 
lii|iiors  in  vicdation  of  law."  i  Ihid., 
Art.  V,  p.  ;!').) 

"  That  tho  said  Theodosins  IJotkin, 
juiigo  as  al'oroy.ald,  unmindful  of  tho 
high  duties  of  his  olUco,  and  tho  dig- 
nit  ios  and  pidprietios  tlii'roof,  and 
notwlthstaiiiling  his  d  ity  to  onforco 
tho  laws  to  proliil.it  tli(5  sales  of  in- 
toxicating li(|uor-  in  this  state,  exci'pt 
fur  niedical.  scii'iil  llle  and  niec!uini(wil 
purposes,  has  frei|uently  during  his 
said  torni  of  olllci',  knowingly,  will- 
fully,  and  illegally  honght  intoxicat- 
ing li(|iiorH  from  persons  selling  the 


same  in  violation  of  law,  by  means 
whereof  tho  said  Thoodosius  Botkin 
has  brought  his  ofllco,  as  judge  as 
aforesaid,  into  contempt,  ridlenlo  and 
disgraoo,  and  has  therciby  knowingly 
and  willfully  eneouragod  the  violaliou 
of  law,  to   the  great  scandal  of  all 

good  citizens;  wliorohy  said  Tli In- 

slus  Botlr'M,  judge  as  aforesaid,  was 
guilty  of  high  misdemoanors  in  oilice, 
whicli  are  set  forth  in  the  several 
specilicatlons  heroinaflor  written,  iu 
substance  a'.d  erfo<'t,  that  is  to  .say  : 

"  Sprrijinilion  Firxl :  In  this,  lliat 
the  said  Tlieodosius  liotkin,  at  the 
city  of  Kpringlleld,  in  Si'ward  eoiiiily, 
(lid,  on  or  about  tlie  Kith  day  of  Janu- 
ary, IH'.ll),  and  on  sun<lry  and  (li\ers 
other  days  tlii'i'oafter,  knowingly  ami 
willfully  buy  of  Henry  Sliortiuan  aiel 
.1.  II.  15.  Adams  intoxicating  liipKirs 
sold  ill  violali(Ui  of  law,  he,  the  .said 
Tlieodosius  Hotkin  then  and  iIcp' 
well  knowing  the  same  to  have  heea 
sold  in  violation  of  law. 

"  Sperifcalion  Sprtin<l :  In  this.  I  hat 
tho  said  Tlieodosius  Botkin,  at  the 
city  of  Springlieid,  in  Si'ward  county, 
did  on  or  about  the  lOtli  day  of  Jiiao, 
IHIMI,  and  on  sundry  and  divers  iillior 
days  thereafter,  knowingly  ami  will- 
fully buy  of  .1.  A.  L.  AVilliams  iii'iixi- 
ealing  li<iiiors,  soM  in  viol:ition  of  law, 
ho,  the  said  Thi'oilosin.s  Botkin,  llieii 
.•ind  tlioro  well  knowing  tlio  same  lo 
have  been  sold  in  violation  of  law. 

"  Siircifrnliim  Third:  In  this,  that 
tho  said  Thoodosius  Botkin,  at  llie 
I'ity  of  Ulysses,  in  (Irani  county,  illd 
on  or  about  tho  loth  day  of  .^pril, 
IN'.IO,  and  oil  sundry  and  divers  oilier 
ilays  llioroat'tiu-.  knowingly  and  will- 
fully Iniy  of  ,T.  \V.  Maddox,  ot,lierwi>e 
called  Bill  Maddox,  intoxicating  li- 
i|Uors,  sold  ill  violation  of  law,  lie.  Ilie 
said  Tlieodosius  Botkin,  then  ami 
there  well  knowing  the  same  tn  have 


03.] 


IMPEACHABLE   OFFENSES. 


595 


cjiiite.^''    or    iiii    abuse    or    reckless    exoreise   of   a   discrctionar}- 


1 11  mkl  in  violation  of  law."     (Ibid., 

An.  VI,  jip.  :i.-.,  3G.) 

-■'  .V  jmli^i*  was  convicU'd  by  tlm 
New  York  Si'iiuto  iin  mi  ni'Uclc  wlii<'h 
cli;ir.ii'd  (hat  "  wliilo  silliii)^  on  tho 
brn.'b  iukI  lioldinj;  a  term  of  Ills  rourt, 
ill  ilii'  ju'i'seiu'o  (if  suitors,  couiisi'l  and 
nlliiM'iH  of  said  court,  and  of  olhor 
lii'isoiis  from  limo  to  timo  thori"  pres- 
(Mil,  lii'did  r('poal(Mlly  di'port  hinisi'lf 
ill  a  inaiiiier  unseemly  and  imlocor- 
ou^.;  did  ri'pi'atodly  uso  langiiaKo 
cii.-irsc,  olpsci'fic)  and  iiidwiMit;  did  rc- 
pi'iitcdly  u^p  lrinj;uaj,'(>,  justly  caus- 
iiii;  tlio^i' p"'''*"'"" '"  '''^  lii'iiriii:-:,  and 
nlliiT  pi'i'sous,  to  liclic'vi!  anil  uiidcr- 
Miiiid  tiKil  1m>,  said  CJ('orKi''i.  D.iriiard, 
in  liis  ollicial  action  as  said  jiiMicc, 
arlcd  not  «itli  an  lioiii'st  liili'lit  faitli- 
liilly  to  discliargo  tho  duties  of  his 
."iiid  ollico,  and  to  uso  tho  process  of 
said  court  for  tho  purpose  of  doint; 
justice,  but  with  the  wronjifnl  and 
corniiit  intent  to  aid  and  benefit  Ids 
friends  and  favored  suitors  and  I'oiin- 
si'l ;  did  repeal edl/  when  apidiealions 
were  made  by  coi  nsel  to  him,  tile 
said  (leorj^e  (r.  l!;irnarii.  In  his  i  ■"■ 
liid  I'apacity,  for  divers  writs,  orders 
ami  processes,  treat  such  counsel  In  a 
iiiiinner  coarse,  Indecent,  arliitrary 
and  lyrannli'al,  and  calculated  to  iii- 
tiiuidale,  oppress  anil  delay  such 
cMiinscl  ill  llie  dlschargi^  of  their 
suoin  duly  to  tlieir  eiienls,  and  to 
ilcpii\e  smli  clients  of  their  right  to 
iillicarand  lie  protected  in  their  lili- 
erly  and  property  by  counsel,  nnil  in 
lliealiovn  inid  other  ways  was  nullly 
of  conduct  iinliecoming  (hehiu'h  jinsi- 
lieii  which  he  held,  and  ti'iidiiu!  to 
brill;;  the  adriiiiiislraliiin  of  jiislice 
iiilo  couleiiipt  and  dls;,'raee,  to  the 
K'leat  scandal  and  reproach  of  the 
siiid  Court,  and  of  the  justice  of  the 
.S(»l(>  of  New  York." 

'riii'rc  were  several   speclllcations, 


of  which   only    three    were 
Those  proven  were:  — 


proven. 


That 


or  about  the  month  of 


October,  IH71,  upon  tho  occasion  of 
an  application  to  him,  the  saiil  (icorgo 
a.  Barnard,  wliilo  ho  was  holding  a 
special  term  of  tli(>  Supreme  Court  In 
tlio  city  and  I'oiinty  of  New  York,  for 
the  aiipointiuent  of  a  referee,  (lio 
party  making  tho  application  siig- 
gi'sted  the  appoiiitmc^nt  of  (Uio  Gr.itz 
Nathan  as  such  referee,  wliore',i|im 
the   said    (ieorge  (i.   liariiaid  said   iii 


siibstam-e, 


Miralz     Xatliaii  —  (rnilK 


Natlian;    I   know   no  (iralz  but  one; 
that   is,    (rratz   Coleman;    ho    is   my 


(rralz,'  or   'he  Is  iiiv   referee 


the 


said    (li'orge   (i.   Barnard    tliercby  al- 


luding to  a  noli 


IS  fact,  thill  saiil 


(iratz    Nathan   was   a  person  usually 


elected  as  ii  referee  bv  .Tilstic 


Car-- 


dozo,  and    lueaiiiiig    Iherel.y  that    lie 
had    a  like  favorite  in  one  .lann  s  ][. 


Coleman.' 


That    in  the  vear  1K7II. 


cation  was  ma 


le,  to  til 


d  (i 


(irge 


(i.  Barnard,  while  he  was  hohling  ii 
spi'cial  teriii  of  the  .said  court,  at  tlie 
place  last  aforcsaiil,  for  the  a|ipoint- 


uient  of  Thomas  \V.  Clerki 


then 


late  a  jiisl  ici?  of  said  court,  as  referee, 
whereupon    tne   »;:id  (Icorge  il.   Bar- 


iiarl  said,  in  substaii 


thai  iio  I'laii 


need  ofl'er  that  person's  nai 


Idlll 


as  rereree,  the  said  jierson  >i,:A  lied 
about  him  ami  had  been  his  eii.'iiiy, 
and   that  he  laMiicd  his  fricmis  and 


not   his  eiieniii 


meaning   llnreliv. 


that  in  his  judicial  cap.'icily  he  acti>d 
with  iiiti'iil  lo  favor  his  friends." 
"  'I'liiil  on  or  about  the  •2lih  ihiv  of 


March,  IMI!),   while   Ih 


.1    (i 


(}.  Barnard  was  sIiIIiil;  on  the  bciii'h 
and  holding  a  speciid  term  oi'  .said 
(iiiirt,  at  saiil  plac(>,  one  Tliomns  C. 
Diirant,  who  was  then  vice-presideiiL 


if   llic    I'nion    I'acilic    Hailwi! 


Com- 


r>9G  iMri:AciiMi;NTs.  [niAr.  xiir. 

l)ower,'*  as  wjU  us  a  lueacli  or  oinissioii  of  an  ollicial  dulv  iiiiposfd 


puny,  was  licing  oxaiiiiiieil  in  said 
fourt  as  u  witness,  ami  said  Diinint, 
iu  tlio  coui-si)  of  sucli  t'xaniiiialioii, 
lestilloil  in  ifl'crcnico  to  a  roinaik  that 
had  lii'i'u  oponly  and  piil)li(dy  made 
by  tlic  said  (ji'orno  G.  IJariiard  in  tlio 
liuicli-rooni  of  llio  Asior  House,  at 
Haid  cily,  lieiiij^  a  place  of  j^eiieral  re- 


rl,  in  the  ■ 


els  or  to  the  ert'eet  fol- 


owin);:    'I   have  driven  ono   set  of 

id   I 
and 


1 

^(Mjundrels  out  of  New  York,  ( 
am  goint,'  t'>  di'ive  out  lliis  set, 
on  Kui'li  I'l'niai'lw  liein^  so  testilii'd  to, 
said  (ieoi'He  ii.  Barnard,  from  his  seat 
•on  the  l)oneh,  in  the  presence  of  suit- 
ors, olUeers  and  counsel  of  Iho  court, 
admitted  that  he  had  made  said  re- 
jnarl\,  at  tin;  place  and  undiT  tho  cir- 
<-umstancL'a  testilled  to,  thereliy  giv- 
ing thoso  present  to  understand  that 


he,  said  (i 


■  v..  I?a 


•d,  as 


J' 


tico  of  the  said  Supremo  Court,  \ised 
tho  process  of  said  court,  not  for  the 
purpose  of  doing  justii'e  liclween 
party  and  l>arly,  hut  for  tho  purpose 
of  prosecutiiij;  and  harassinj»  the 
Union  I'acilie  Kallroad  Company  and 
thi' olllcers  thereof,  sai<l  company  be- 
ing cngagivl  in  a  litigation  with  James 


risk, 


(liarnard's  Impeai'lnuent 


Trial,  ]).  21,5'J. ) 

"  That  on  or  about  tin'  IDth  dav  of 


February,   1K72,   the 


<d<l  (1 


.rgi 


(t 


]!,irnard,   while   sitting  on   the  b(\nch 


md    hnlditig  a   term  of 


liil 


I'ourt  at 


till 


I'ity  of  Nmv  York,  on  an  appliia- 
tion  being  maih)  !o  him  to  attend  an 
order  whereby  Philo  T.  Kuggles,  Esip, 
had  been  appointed  referee,  said  iu 
cITect :  '  I  shall  sign  no  order  nnless  I 
can  make  it  to  a  man  I  can  rely  upon. 
I  am  not  going  to  appoint  finyono 
even  by  consent,  unless  It  is  satisfac- 
tcu'y  to  me.  I  did  not  appolTit  this 
ri'fer<>e.'  And  one  of  counsel  in  I  lie 
case  staled  :  '  This  gentleman  was  not 
appoiuted     by    consent.'      The     said 


fleorge  (J.  Harnard  further  said,  in 
elTect, :  '  I  don't  c:iri',  I  shall  n<it  clu  ii ; 
and  if  you  don't  like  it,  you  can  put  it 
iu  for  the  UDllth  arlicle  of  impeach- 
nieiil.'"  (JSariiard's  Impeachment 
Trial,  ji.  '21i;0.  i  See  also  PickerinK's 
Impeaclimeiit  Trial,  Hupra,  -?  "Jii  ''i/r'i, 
§  01. 

.Judge  Itapallo  said  (at  p.  '^J  -  oi 
liarnard's  Trial  :  "To  treat  tlieilia- 
crellouary  jHiwiu' of  appointing  ri'fer- 
ei>s,  rc<ceivers,  guardians,  etc.,  which 
is  incidentally  vo.'^teil  in  a  judge,  as 
an  instrument  of  patronage,  to  ho 
used  by  him  for  I'.o  benellt  of  his 
friends  or  his  own  mlvnneemenl,  nc- 
cossarlly  destroys  tho  |ierfect  iiupar- 
ti.'ility  with  wliiih  such  powers  shoiilil 
lie  exercised  or  their  e.xendso  refiis<'d, 
with  tlio  sole  vlow  to  the  rights  and 
inleresis  of  the  parlies  befiu'e  him, 
and  causes  motives  and  interests  of 
his  own  to  intervene,  whiidi,  if  net 
actually  leading  to  a  (orrupt  violation 
of  the  rightsof  litigants,  must  at  least 
di>stroy  cimlidenco  in  the  inlogrity  of 
tho  motive  and  action  ot  tho  judge. 
In  my  judgment  tho  j)ublic  av(jwalof 
a  principle  of  judicial  action  so  de- 
structive of  conlldence  in  tho  integrity 
with  which  a  uki  t  important  branch 
of  the  jurisdii'tii'  .  uf  tlio  courts,  in 
which  tho  respondent  .sat,  was  c.tcr- 
cisoil,  do.s  sustain  tho  charge  of 
bringing  si-andal  and  reiiroach  upon 
tho  court." 

••»'  In  tlio  same  trial  (|ip.  'IWM  'JtlWi 
it  was  said  by  Judge  Grover,  with 
whom  tho  rest  of  the  Court  of  Ini- 
;  eachnient  seemed  to  agree:  "The 
counsel  of  tho  r.-sjiecti vo  parties  agree 
Bubstanlially  upon  llu'  law  us  to  "lint 
coiistitut(>s  an  iuipeachable  offonse. 
They  e.NprosHcd  it  in  somewhat  difl'cr- 
ent  language,  but  Iho  fnndamealnl 
idea  was  tho  same,  that  an  Inpeiicli- 
ablo  olTense  in   a  judi    al  olllcor  cou- 


W 


§  03.]  IMl'l'ACHAIiLK   ori'KNSKS.  597 

by  statute  or  eoniiD.iii  law;-"  or  a  public  .speech  wliuii  off  iluty 


^istl'll  (if  Mil  intent ioiial  vidliilion  nf 
iluly  oil  his  ]i:irl  to  tlic  pri'jiidiro  of 
|iiiiiil.-  .justice;  Of  a  ri'c'l<li.'ss  exercise 
(if  liis  I'linclions,  IndilTeiTut  ns  to 
wlietlier  wlmt  lio  did  was  riglit  or 
wront;;  I  lliinlc  Hint  tliose  dollnitions 
will  furnish  ii  test." 

"It  is  tho  duly  of  every  Judieinl 
iillirer  to  inveslijjate  (luestioiis  that 
are  iireseiite(l  for  his  (loteriiiiiialion, 
and  exercise  Ids  judgment,  and  when 
lie  lias  iu  nood  faith  exercised  liis 
jiidfjmeiU,  he  is  oxeusalile  for  erroi  ; 
hut,  if  he  does  the  a(>t  without  ri'unrd 
to  whether  it  is  rij^lit  or  wrons:,  or  if 
lie  does  it  conscious  that  he  is  vio- 
lulina  the  law,  or  if  lie  act  without 
liiiviiiH  examined  it  at  all,  ho  is  guilty 
III'  a  violation  of  tho  duty  of  his  oOlee. 
This,  in  tii(|  liiiiKuaRo  of  the  aiticle,  is 
•  lual  and  corrupt  conduct  iu  (iniet>,' 
and  an  iiupoaelialilo  olTeiise." 

On  the  same  trial,  Senator  D.  V. 
\V  Hid  said  :  "  A.  rifjht  decision  may  lio 
aniveil  at  in  siicli  an  oppressive  inau- 
-  'T  1  1  ii,  jiid^'e  as  to  lie  converleil  into 
,.  i^i  .It  wroiiK.  1  mean  liy  that  that 
li  ;  .".  .irrivo  at  what  would  lie  a  just 
1  ni-  !;  'n  tho  end,  inamaniKnlo  coni- 
■lo  I  eat  a  wroiiR  as  to  render 
lii'i  'C'-  '.lalilo  to  conviction  on  aw  artl- 
ticle  I  '  !:•  ,  eachnient.  I  will  supposo 
a  case:  A  sunimous  Is  drawn  up  ae- 
coiiip.iuied  by  ueoniplaint,  n^ainst  me, 
.■iliowiiif;  upon  lis  fiico  that  I  oive  au 
lidui  st  ili'lit  wli.  ii  I  iiej^leot  or  refuse 
t(i  pay,  and  which,  after  a  trial,  must, 
if  proved,  entitle  the  plaintiff  to  a 
iuilmnent  a;;aiiist  me,  and  an  execu- 
tion to  lie  issued  thereon,  and  my 
properly  to  lie  seized  and  sold  and 
the  avails  turned  over  to  tho  plaintilT. 
Nmv,  will  hotell  mothatlf  upon  those 
•■:ip  rs,  a  jud({e,  without  notice,  issues 
111  order  to  the  sheriff  to  8(>lzo  in,y 
liniperty  and  pass  It  over  to  my  credi- 
tors,  or  ajipolnts  a   reeeivor  of   my 


jiroperly,  and  at  the  san)(>  time,  and 
in  the  s;inie  manner,  i.ssues  a  writ  of 
a.ssislance  to  put  that  property  into 
the  iiands  of  a  receiver,  and,  if  you 
please,  noes  still  further,  and  inserts 
la  that  order  appointiuH  a  receiver,  a 
provision  that  when  that  property  is 
placed  iu  his,  the  receiver's  hands.  It 
shall  Iio  by  hiai  liandeil  over  to  the 
plaintiff  in  the  action  :  tliat  the  judno 
cannot  be  impeached  for  that  act  lie- 
caiiso  the  papers  pres(i|iled  to  him,  on 
their  face,  made  a  jiri'ma /(inc  case  of 
indelitednesa  against  nie'^  "  (Ibid.,  jip. 
aO!),".  '2n!)(;.) 

Tho  judge  was  couvicted  by  a  two- 
thirds  vote  of  guilty  on  Article  XI,  to 
which  this  reference  was  made,  for 
granting  ex  parte  an  order  appointing 
receivers  and  ordering  them  to  take 
inimiMiiatc  jmsseasion  of  a  railroad; 
i'lthoui;h  the  papers  oil  which  theap- 
plical  ion  was  made  alleged  insullicient 
to  sustain  the  jurisdiction,  when  the 
evidence  showed  that  the  judge  left 
his  mother's  deathbed  on  a  telegram 
from  .Tames  Fiskon  tho  iiioriiing  whon 
h(<  granted  the  order,  went  to  New 
York  to  tho  house  of  I'isU's  mistress, 
and  not  (Indinghimthere,  totheOrnnd 
Opera  House,  and  thenco  to  another 
house  owned  by  James  Fisk,  and 
signed  the  order;  having  left  Pough- 
keepsie  at  <i  o'clock  and  sent  tho  riv 
ceiver  on  tho  train  to  1aki>  possiission 
of  the  railroad  at  11  o'clock  the  same 
evening.     ( Ibid.,  pp.  21)1)11- '2101). ) 

■-"  I'Ickeiiiig's  Iiiiiie.ichment  Trial; 
Humphreys'  liiipeachiuent  Trial;  .\il- 
dlson's  Iiu pe.nch men t  Trial ;  PrescoK'a 
Impeachment  Trial;  IIoldi>ii's  Iiii- 
peaclinient  Trial ;  Frn/.iei's  Imjieai'li- 
ment  Trial;  Daruard's  Impeachment 
Trial,  vol.  ill.  pp.  2n:)7  •2'2();t.  In  Stale 
r.  Ctcm'ge  S.  IListings,  Altorney- 
fieiieral  and  others,  ;t7  Nebraska,  90; 
s.  ('.  ."iTi   N.  W.  neji.,  771,  the  court 


598 


IMIMOACIIMENTS. 


[CHA1>.  \11I. 


■\vhidi  ciicouiaji^L's  insui'ivctioii.'-^  It  does  not  consist  in  an  oinir 
in  jiidgintMit  made  in  n'ood  faith  in  the  decision  (if  a  donlitfnl 
q'.iestidii  of  hiw,'^  exeejit  perha|;s  in  tiie  case  of  a  viohition  of  llie 
Cojisiitntion.*' 

■hides  sneh  aetioi'.  by  an  oflicer  wlien  aeliu  ,■  ■■<■'.  a  menilier 
«--  of  a  hoard  of  eonimissioners;^'  an<l  .sn.li  ;:ir!(iii  in  tlie 

sanu  ;  a  siniihir  oflice,  al  an  immediately  preceding  term,  in  one 
case,  it  was  so  held,  after  his  re-election  in  a  campaign  at  which 
the  charges  were  discussed  upon  tliJ  stump.''-  Otlierwise,  it  seems 
an  ollicer  should  notbe  impeaclied  for  an  offense  committed  before 
liis  I'l'iicial  term,'"  nor,  except  pei'liaps  when  the  ofl'ense  ten<ls  to 
bring  the  office  into  great  disrepute,'^  for  an  offense  conniiitted 


saiil  tliat  n('Klisi''in'<'  so  ki'oks  and 
lliij;i!iMt  as  to  warrant  tlio  iiircnMico 
that  it  was  comiiit  roust  itiitcil  a 
■' iiiisili'iucaiior  in  olllci'"  wliicli  was 
a  ni'oiaid  of  iiii]ii'!ichim'rit. 

28  Iliinlv's  Iiii|ii>arhiMi'iit  Tiial, 
infra,  §  lU  ;  IIiiiu|iln'i'vs'  Imiioacliiiicnt 
Trial,  fuiynt,  4j  '.Kt,  in/ni,  §  ".l:i. 

-••  Till'  lollowliig  (li'liiiitiou  by  Ea- 
JiiilHi'  William  Lawroiu'O  Iiail  tlio  aj)- 
))i'Oval  of  tlio  manaKors  of  Joliiisoii'a 
Imin'achmcMl  Trial :  "  An  Inipoaclrilili! 
]iit;h  crinio  or  misdonioanor  in  0:10  iu 
its  n.itiiri)  or  c'onsi'i|n(?iiio  siilivorsivo 
of  wiiiii'  fiindaiiK'nlai  or  I'sscrilial  priii- 
ciiilo  of  gov(>rnmi'nl-  or  lii(»lily  jirrjii- 
di<-ial  to  tlio  imlilu!  iiili'r(>st,  and  this 
iiiay  consist  of  a  viohition  of  tlic  Con- 
slltulion,  of  law,  of  au  olllcial  oath, 
or  of  duty  liy  an  act  coinndltiMl  or 
oii;ir.<Ml,  or,  without  violating  a  ]iosi- 
livr  law,  liy  till!  aliiiso  of  diycrelion- 
nry  powers  from  inipropi'r  purpose." 
{.Joliiiaon's  IniptMudiinout  Trial,  vol.  I, 
p.  It7.)  Sc'o  also  tliK  armiinoiUs  in 
('have's  and  Peck's  Inipeaihinent 
Trials,  especially  the  nrRnnients  of 
Jlaiiatter  Charles  .\.  Wlcliliffe  and  11h> 

res| dent's  counsel,  Willlani  Wift,  in 

!'(>!  k's  Trial,  HZ/jra,  §  1)1);  ]!:i}-nard's 
Impeachment  Trial,  vid.  iii,  p.  '2ii:iH, 
jier  (Ifover,  .1.,  p.  'JO.-)".  l'ecl;'s  Iiu- 
jieiichnieiit  Trial,  per  Jlanaircr,  after- 
ward-; President  James  liuohauan,  d. 


■J'2S  ;  per  respondi'in's counsel,  William 
Win,  ]ip.  -IDl  -l'.)-");  I'liase's  Inipe.M'h- 
ment  Tilal,  HHj)ra,  §  ',)!),  iiil'ni,  §  '.)J; 
ri'oscoll's  Impeaelinicnt  Trial,  per 
llanand-,  afterwards  Chief  Justice, 
Shaw,  p.  lH-2;  Jaclison's  Impeachin<'nl 
Trial;  Huliliell's  Impeachment  Trial; 
I'a^'e's  Impeachment  Trial;  Holkin's 
Impeaclunenl  Trial,  infra,  Appenillx 
to  tliis  volume;  Kt.'ite  r.  (li'ori^e  II. 
lla.stings,  Attorney-General,  and  oth- 
ers, ;i7  Xehraska,  00. 

^'>  See  reek's  Impeachment  Trial, 
per  Mami^ler  Clnirles  A.  WlcklltTe,  p, 
•ii'2;  Johnson's  Impcai'liment  Trial: 
Frazicr's  Impeachment  Trial;  Hel- 
(len's  Impe.'U'hmi'iit  Tritd,  infra,  Ap- 
jiendix. 

■"  liulier's  Impeachment  'I'ri.d,  111- 
fra,  Apiiciidlx. 

•'- llulibcU's  Impeachment  Trial; 
li.'irnard's  Impcichment  Tri.d;  But- 
ler's Impeachmciit  Trial;  State  r. 
]iour^;(H)ls,  •1.')  La.  Aim.,  l:t.")();  s.  c,  11 
So.  Hep.,  '2H.  See  the  iiuotatlon  from 
State  r.  11111,  Kx-Treasuror,  37  Ndi., 
SO,  ill);  ipioted  Hiipra,  S  12,  nolo  l.">. 

•"Trial  of  Henry  W.  .Merritt,  n 
Spei'ial  Justice  I'or  preserving  tin' 
peace  in  the  city  of  Xew  York.  New 
York.  I'ulilishcd  by  (iould,  liarinsit 
O).,  IH-IO.     S.'c  §  ;).■.. 

'*  Supra,  notes  '23,  '24, 


§  93.]  IMl'EACHABLE   OFFKNSES.  599 

while  holding  oilice  but  nut  when  exi'icisiiig  an  ollicial  funclioii :  "' 
iinlil  after  convietioi!  of  an  infanidus  ciinie  or  of  a  nii.sdfnii'anor 
fiiHowed  l)y  a  suntonce  which  pievents  his  discharL,'!'  of  liis  olhcial 
dnties.*'  in  case  of  such  a  conviction,  an  ollicer  of  the  I'nited 
States  or  of  a  State  -where  tiie  Constitution  provides  no  otiier 
method  of  removal,  may,  in  accordance  with  the  analogies  of  the 
ciininion  law,  undouhtedl}'  l)e  removed  Iiy  impcaeiiincnt.''' 

At  least  where  there  is  another  method  of  removal,  an  ollicer 
shonhl  not  be  impeached  for  pliysieal  or  mental  incap:ieily.''*  Jn 
Tyler's  ailmiiiistration,  Joiin  (^niney  Adams  in  a  rejiort  U)  the 
House  of  Uuprisenlatives  exjiressed  the  ojiinion  that  a  President 
might  be  inipi'aclied  for  an  almse  of  tin;  veto  power."'*  In  the 
Nirginia  Convention  Madison  said  tliat  if  tiie  President  "got  up"' 
a  treaty  ••  \\itli  surprise"  he  woidd  be  inipeached  ; '"  and  tiiat  '-in- 
capacity, negligence  or  perfidy  of  tiie  Chief  ^Magistrate  "  should 
lie  a  grounil  for  impeachment."  (Jouverneur  Morris  said:  "The 
ilxeeutive  ouglit,  tiierefore,  to  be  impeachable  for  treachery.  Cor- 
rupting his  electors  and  incapacity  were  other  causes  of  impeach- 


■"i  Supra,  noli"  "23;  infra,  §  95,  notes 
1  and  2. 

■■"i  Infra,  §  !)5. 

•'"  Sci!  lli.i  nrgumont  of  Clmrlos  A. 
Wiclilin'i',  niiuiaj^iT  in  Pocli's  Inipciich- 
Hirnt  Trial.  \t.  adit;  HanK's  Caso,  11 
('<>k(>, '.I'.);  Ki'x  r.  liicliai-.lsoii,  1  liiiiT, 
."ilT,  t>;iH;  C'oninionv.dalUi  r.  .Jcini'K,  1 
Uiish  (Ky.),  T'i.") ;  Slater,  lliiniphrii's, 
7!  Texas,  Kifi;  .Vinlrcws  v.  Kiufi,  77 
itainc.  '2-U,  '2;!2. 

■'"  See,  however,  llie  langnani'  ot 
(ioiivenieni'  Morris  ijiioled  I'li/ni  over 
Mule  1'2.  Ill  tlu'  ease  ol'  Wanl  Hunt, 
.Iiisliee  ot  llie  Supreme  Court,  wlio 
was  ini'apaeitateil  liv  illness,  and  re- 
fused lo  i'esif,'ii  unless  pi'nHJoned,  Con- 
Ki'ess  passed  a  liill  I'ivinK  him  a  pen- 
sion upon  Ills  resl!,'nalion.  A  siinilai- 
slatiite  was  passiMl  in  the  easo  of  ii 
District  .Tud^'e  of  the  Vniled  Slates. 
The  hrief  of  Ex-Tudne  William  Law- 
rence, adoptixl  li.v  the  nianiiLjers  of 
•Tohnsoii's  liii])i'iiehment  trial,  says; 
that  the  power  of  inipeaehment  "  may 


rpaeli  onieers  who,  fnuii  ineapa<'ily 
or  other  cause,  are  nli.solulely  unlit 
for  the  perforniiini'e  of  tlieir  ollliial 
duties,  when  no  other  n'me<ly  exists 
and  till'  pulilie  interest  imperatively 
dcMii.-iiids  it."  (Johnson's  luipeaehnient 
Trial,  vol.  i,  p.  117.  i  See  also  the 
proeeedinns  on  ricUerinj,''s  impeaeh- 
menl  trial. 

•'■'  l!e|iort  on  the  Veto  of  the  Tariff 
]>ill,  House  Reports,  '27lh  Congress, 'id 
Si'ssioM,  v<d.  V,  No.  !»'.IH;  lirief  of  Wil- 
liam Lawn  H'o  in  .Tohn.son'»  Iinpeaeh- 
ment  Trial,  vol.  i,  ]i.  140.  See,  how- 
over,  the  minority  report  of  James  F, 
Wilson  and  Frederieli  (i.  Wooilhridge 
upciu  the  llrst  proposition  to  iiu- 
lieaili  Anilrew  Johnson,  House  He- 
jioils,  lOili  t'ounress,  1st  Session.  No. 
7,  p.  !H. 

^1  Klliolfs  Debates,  2(1  ed.,  vol.  ill, 
p|i.  5IIII,  .">!(•>. 

*'  Jludison  I'apers,  ibid.,  vol.  v,  p. 


000 


IMPEACHMENTS. 


[chat.  XIII. 


Jiient.     For  the  latter  he  should  be  punished  not  as  a  nuiu  hut  us 
an  ullicHT.  and  jjunisliud  oidy  by  dej^rudation  from  ollice."  ""^ 

In  the  first  duhatu  in  ("onjjjri'ss  on  the  right  of  removal  from 
odice,  ]\l;iilis<in  said  that  "tlie  wanton  removal  of  meritorious  oOi- 
ecrs  would  si  iijcct  liim  to  imiieachment  and  removal  from  olMce."''' 
If  this  consti  uetiou  liad  iiecn  adopted  and  enforced,  few  Presidents 
siuee  Joiui  (Juiney  Adams  would  liave  escaped.** 


§  (>4.    Convictions  upon  Inipou-IiintMitM  in  t]ic  United  States. 

Convictions  on  impeachments  and  removals  in  some  cases  with 
discpuililication  iiave  occurred  in  tlie  United  States  as  follows  : 
l*ickering,  a  district  judge  of  the  United  States,  for  ordering  a 
ship  with  her  contents,  which  liad  been  seized  for  an  alleged  \u>- 
lation  of  tlie  custom  laws,  to  be  delivered  to  the  claimant  without 
requiring  a  bond  as  proviilcd  by  law  ;  for  refusing  to  hear  any 
testimony  offered  by  the  United  States  in  a  proceeiling  to  con- 
demu  the  same  vessel  ;  for  refusing  to  allow  an  a[)peal  by  the 
Unite'!  States  in  the  ease  ;  and  for  drunkenness  and  profanity  on 
the  bench.'  Humphreys,  a  district  judge  of  the  I'nited  States, 
for  a  i)ul)lic  speech  inciting  revolt  and  rebellion  against  the  Con- 
stitntiou  and  governnieutof  the  United  Slates  and  a  pidilic  dcchir- 
ation  therein  of  the  right  of  secession  ;  for  supjiorting,  advocating 
and  agreeing  to  the  Ordinance  of  Secession;  for  organizing  arnicil 
rebellion  against  the  Unitiid  States  ;  for  joining  in  a  conspiracy  lo 
opjiose  by  force  the  authority  of  the  United  States  ;  for  refusal  to 
hold  court;  for  unlawful  acting  as  judge  of  the  ("onfederate  liis- 
triet  court,  and  in  such  capacity  making  tudawfid  arrests  and  ini- 
pil.-njii...^:;t.:.^  /vd.lisoii.  a  judge  of  a  court  of  common  picas  iu 
I'ennsylvania,  for  charging  a  i>etit  jury  in  langu.age  disrespectful 
to  an  associate  lay  judge,  and  for  refusing  to  pi'rmit  liis  associate 
to  charge  a  grand  jury.-'     Sherift'  (iicenleaf,  in  Massachusetts,  for 


*^  Madison  I'lipiTH,  vol.  v,  p.  M'.l. 

<■■•  EUioll'8  Dcluiti's,  2(1  P(l.,  vol.  iv, 
J).  3S0.  Sco  also  opinion  of  Scnatoi- 
Ilowi'ln  Jolinson'sInippai'linicntTrial, 
vol.  iil,  p.  71. 

<'  Si'o  ttii>  itiinoilt.v  ropoit  of  .Tamos 
F.  WiLsoniuiil  l''ii'd('rickK.\V()0(llii-iilno 
uiion  the  tlrst  iiropositiou  to  impeach 


Anili'inv  Jolmsou  (House  Kciiorts,  liitli 
i'onnri'ss,  l.sL  Session,  No.  7,  p.  HO.) 

4j  '.)4.  1  I'iclici'inK's  InipcMH.'linii'nl 
Trial,  supra.  §  IKl. 

'-'  Iliimpliroys'  Imjji'aclinuMit  Trial 
Kiiprit,  S  1)0. 

■'  .Vildisoii's  Impoaclunont  Trial 
infra,  Apiicndix  to  tlds  volume. 


94.] 


COXVK'TtONS    IX    THE    UNITKn    STATICS. 


601 


\hv  cnil)ezzlcmeiit  of  public  money;  for  exliibitiii<f  false  accouuls 
aiui  letiii'iis  to  the  State  treasurer;  and  for  procuring  an  exeeii- 
lioii  and  a  distress  warrant  for  money  wliicii  he  had  already  col- 
lected.'' Hunt,  a  justice  of  the  peace  in  the  suiie  Sinte,  for  milking 
false  entries  in  iiis  re(!ords  of  appearances  and  prfieeeding  liy  par- 
tics  wlio  liad  not  appeared.''  \'^inal,  another  justice  of  the  peace 
tlieic,  for  l)rihery  and  extortion.''  I'rescott,  a  Massachusetts  pro- 
]mU:  juilge.  for  collecting  illegal  fees."  Kichard  S.  Tiiomas,  a  cir- 
cuit judgi^  in  Missouri,  for  unlawfully  removing  the  clerk  of  his 
coui't  and  appointing  his  own  son  in  his  place  ;  for  signing  as 
surety  a  bond  upon  an  appeal  by  his  son  to  his  own  court  and  then 
iudclinitely  postponing  tiie  trial ;  and  for  conspiring  with  a  lawyer 
to  release  on  bail,  without  taking  testimony,  the  hitter's  client  who 
was  charged  with  nnirder.'^  l-Uliott,  judge  of  tiie  City  Court  of 
hai'ayette  County  in  Louisiana,  for  neglect  of  duty  in  failing  to 
properly  keep  tin;  rcc(n'ds  of  naturalizations  and  permitting  his 
clerk  to  issue  false  ccrtilicates."  Wicklitt'e,  auditnr  of  the  [jublic 
accounts  of  Louisiana,  for  issuing  a  warrant  i'or  the  payment  of  a 
claim  which  lie  knew  to  l)e  illegal."^  Rates,  t>easurcr  of  Califor- 
nia, for  misuse  and  waste  of  the  State  funds.  Hardy,  a  district 
jiiilge  in  California,  for  pulilic  language  when  off  tUu  bcucii  express- 
ing his  sympiitiiy  ■witli  the  Southern  Confederacy."  IJobinson, 
secretary  of  State,  and  fJeorge  S.  Hillyer,  auditor,  of  Kansas,  for 
selling  bonds  of  the  State  at  a  less  price  tiian  was  authorized  by 
law  and  at  less  than  they  might  liiivi!  obtained^-  for  the  same. 
I'"ra/.iei',  judge  of  a  Criminal  Couit  in  Tennessee,  for  releasing  by 
habeas  corpus  a  mendierdf  tlie  State  house  of  representatives  I'mm 
the  custody  ('f  the  sergeaiit-at-arms.''^  (iovernor  Holden  of  Xiuth 
Carolina,  for  refu.--iiig  to  obey  a  writ  of  halieas  cor[ius,  in  imitation 


■•  Appomlix  to  PicHcoll's  Iiii|"'arli- 
iiii'iil  Ti-ial,  pp.  2I'2-'21 1  :  >-cm>  Appoinlix 
to  lliis  vohiini;. 

'  Ibid.,  pp.    211-2H!.  Sec  Appc^Tiilix. 

'■  Iliid.,  jip.  '21(!  -217.    SiM'  Appcrulix. 

"  I'fi>sc(itt's  Inipciiclimi'ut  Trial, 
infra,  Apppiidix. 

"  Si'o  .Tiicitson's  InipcacliiiH'iit  Triiii, 
pp.  ;t;i('i-.'!:i7  ;  AppiMnlix,  iufnt. 

"  Elliotl'H  Impoachiui'iil  Trial,  Ap- 
pendix ;  infra. 


'"  WicklillV's  Inipi'achnient  Trial, 
infra,  .\ppi'iidix. 

n  Hall's'  Iriipcailiinc'iit  Trial,  in- 
fra. AppiMidix.  Hanly's  IinpeachiiiiMit 
Trial,  infra.  Appendix. 

1-:  I'npeacl.nicMt  Trials  <)f.ToliM  W. 
ItdliiMMHi  and  (leiirgo  S.  Hillyer.  Se»> 
.VppiMidix. 

I''  Frazier's  luipoachment  Trial,  in^ 
fra.  Appendix. 


602 


IJIl'EACHMENTS. 


[ciIAr.  XIII. 


of  I'rosidi'iit  Lincoln,  withimt  1 'jfisliitive  autliority.  (ioviiim!' 
]Jutler  of  Xt'hraska  for  enilK!7,zlinfj  the  jmblic  funds.  I^iL'utcn  nii- 
ti'overiior  Davis  of  Mississijipi,  for  selliiif^  a  pardon  to  a  conviiK-d 
uiurdi'i'er  durinLf  llie  absenco  of  tiie  governor  from  tiie  Stite. 
Jud<f(!  Oslhiriie  of  Geoi'gia  for  falsifying  returns  of  an  election  to 
Con;,Mc.ss.  (ioldsnutli,  eoinptroller-general  of  (Jeorgia,  for  tlic  111"- 
gal  folleetion  and  appropriation  to  his  own  use  of  insurance  ffcs 
and  taxes  and  making  false  reports  concerning  his  eoUeotions." 
Judge  IJainard  of  New  York  for  unjust  partiality  to  suitor-!  Ici 
whom  he  gave  ilh^gal  orders,  and  for  language  on  the  bench  which 
brought  the  administration  of  justice  into  disrepute."'  Seeger. 
treasurer  of  Minnesota,  for  improper  investments  of  the  State 
funds  and  concealment  of  the  delinquency  of  his  predetMsssor. 
Judge  Cox  of  Minnesota  for  drunkenness  on  tiie  ])encii  and  when 
in  the  discharge  of  official  functions  off  the  bench.  Lavcrty, 
keeper  of  the  New  Jersey  state  prison,  for  licentious  intercourse 
■with  female  convicts ;  and  Connelly,  a  New  Jersey  justice  uf  the 
peace,  for  an  assault  upon  a  lawyer  in  his  office.'^ 


S  0«».    Chuscs  for  which  Piihlie  Olllcers  may  he  Ucinovvti. 

The  following  decisions  as  to  the  causes  forv.'hich  public  officers 
who  do  not  hold  oilice  at  the  jileasure  of  the  appointing  power 
may  be  renu>ved,  offer  analogies  that  may  be  useful.  A  puhlic 
officer  cannot  be  removed  for  a  crime  which  is  not  a  violation  of 
liis  official  duty  until  after  conviction  by  a  court  having  jurisdic- 
tion of  such  crime.^  After  such  a  conviction  he  may  be  removed 
if  the  crime  is  infamous,  or  even  if  it  is  a  mere  misdemeanoi',  when 
he  is  sentenced  to  a  term  of  imprisonment  which  will  prevent  hiiu 
from  discharging  his  official  duties.'^ 


u  S(>o  their  respoollvo  trials  in  tlie 
Appi'iiilix,  iiifrn. 

'*  Baiuunl'rt  Ini|ii'at'iiin('ut  Trial; 
siijira,  ^  1)3,  notes  25,  •2ii ;  infra,  Appou- 
dlx. 

''  Sco  tlioir  rospoclivo  trials  in  tlio 
AppiMiilix,  infra. 

§!)5.  >  Hmkh's  Case,  11  Coko,  99; 
Eex  V.  Rlcluinlsou,  1  Uurr,  517,  51)8; 
Commonwealth  v.  Joiie«,  10  ]$ush 
(Ky.),  725;   Stato  v.  Humphries,   7-1 


Texas,  4fifi ;  Andrews  r.  Kiiij;.  77 
Maine,  224,  232.  But  see  Dliv.r  v. 
City  Council,  (!9  (in.,  I(i5 ;  People  r. 
Hoard  of  Police,  11  Hun.  (N.Y. ),  lOIt; 
Pooph'  II.  Frnneh,  32  Hun.  (N.Y.),  112; 
s.  c.  no  How.  Pr.  (N.Y.>,  377;  nml 
other  cases  cited  in  American  .iml 
EuKlish  Encyeloincilla  of  Law,  m>I. 
xls,  p.  5fi2,  in  Note  1. 

2  Iljid.     But  SCO  Coniniouwealtli  i'. 
Shaver,  3  WuUs  &  S.  (Pa.),  33S. 


!i  !'-^-] 


CATSIvS    OF    UK.MOVAU 


608 


'I'Ik!  following'  acts  have  liueii  licM  sui'li  bnvulu'sof  nl'iii'lil  il;i:_y 
as  to  constitute  a  ciiUH(;  for  rcni(j\-:il  I'loni  ollicc  :  iK  iiianilinn'  atid 
receiving  illejfal  fees;''  receivin;^  brilies;''  t!io  ])evsistrnl  i\  uisal 
In-  ii  county  clei-k  to  perforin  his  ilnties  as  clerk  of  the  hoard  of 
county  conunissioners,  alihou^ii  he  l)elieveil  tliat  the  action  which 
they  contemplated  was  illeifal  •/'  the  |)crsistciit  icfnsal  liy  a  rounty 
attorney  to  priisecute  violations  of  the  licpior  law,  althoU;^h  he 
i)ased  his  refusal  upon  his  belief  that  the  sciitinient  of  (he  coniniii- 
iiity  was  opposed  to  the  enforcement  of  the  law;*'  the  ri'peatcd 
i\'moval  of  frovernmeiit  landmiirks  by  a  county  surveyor.  altlioiij;h 
hi;  cLumed  the  right  to  do  so  for  the  pur[)ose  of  rectifying  the 
original  survey;"  the  use  by  superintendents  of  the  jjoor  of  their 
ollicial  power  and  the  poor  fund  to  compel  the  recipients  of  their 
favor  to  vote  I'lidcr  their  di(.'tation  ; '^  the  failure  by  the  same  of- 
lieeis  to  refund  to  the  treasurer  monc}'  repaid  them  by  persons  to 
whom  the',  had  given  temjiorary  relief  ;'■'  the  action  of  the  same 
oflic'.'ro  in  drawing  orilers  on  the  county  lieasnrer  in  favor  of  per- 
^.iiis  named  therein,  collecting  the  drafts  themselves  anil  coia- 
pt'lling  the  payees  to  take  from  them  goods  at  exoibitant  prices 
in  ])ayment  f)f  the  drafts  ;  ^^  the  act  of  a  comity  clerk  in  knowingly 
])erinitting  a  material  alteration  of  his  ollicial  rci'ords;"  the 
certifi(;ation  by  a  board  of  State  canvassers  of  an  erroneous  state- 
ment of  the  votes  upon  a  constitutional  amendment  prepared  b)' 
(heir  (derk  and  not  examined  by  them,'^  and  the  false  certiliealion 
of  tietitions  records  by  a  county  clerk '•'' without  proof  of  corrup- 
tion in  either  case;  the  false  certilication  by  a  register  of  deeds 
over  his  ollicial  signature  that  he  had  examined  a  title  and  found 
it  unencumbered  although  no  statute  authorized  a  certitirate 
by  him."  A  statute  providing  for  the  removal  of  a  public  ollirer 
for  habitual  intoxication  or  for  voluntarv  intoxication  in  business 


'^  IJiiiikoin'idge  v.  State,  27  Toxns 
App.,  51.'). 

*  Sdito  r.  Jcispy  City,  1  Dutchor, 
N.  .1.  Law,  r,M. 

"5  StiU(!  V.  Allen,  5  KiiiiMtis,  21:1. 
"Stiitc!  V.    Fostor,   ,32   Kansas,    14: 
.s.  c.  112  U.  S.,  201. 

'  iriiikleri'.  Slate,  UNebniRka,  181. 

*  GaKcr  D.  Board  of  Suiieivisors  of 
Chippewa  County,  47  Mich.,  ll!7. 


» Ibid. 

11  Iliid. 

n  CoiiHuonwealtli  v.  Rari'v,  Ilardin 
(Ky.\  22'.). 

'-  Attorney-General  r.r  ivV.  Kieh  v. 
Jochim  (Micii. .,  ."iH  N.  W.  Kep..  (111. 

I'l  ConiMionwealth  r.  Clwunbers.  1  J. 
J.  Marsh  (Ky. ),  ICO. 

"  State  V.  Leach,  GO  Maine,  58;  8.  0. 
11  Am.  Rep.,  172. 


r.(i4 


IMI'EACIIMKNTS. 


[ciIAr.  Xlli 


li  Kiis  was  liultl  coiistitulioiuil  as  jnovidini^-  for  areinoviil  from  ollice 
foi'  incapacity'."'  Wliurc  iiii  olliccr  iisstiiiied  duties  wliicli  lie  wuh 
not  nMiuired  to  perforin,  it  was  huld  tliat  lie  mii,dit  lie  removed  for 
want  of  skill  in  tlicir  performance.'"  It  has  liceii  said  that  it  is 
"  [iroper  to  Separate  the  character  of  the  man  from  the  character 
of  the  oilicer";  that  "a  very  honest  man  may  make  a  very  indif- 
ferent clerk,  and  a  man  despiealile  for  his  vices  may  make  an  cx- 
eelh'iit  clerk."'"  It  was  held  in  Kentucky,  that  tlu'  intoxication 
of  a  county  j'.ilj,'e  'vhile  in  the  performance  of  his  ollicial  duties 
when  issuir.jf  letters  of  administiation  was  not  niis-feasance  in 
oilice,"*  liv  a  general  term  in  New  York,  that  the  use  of  olisccne 
and  ahasive  languaj^e  by  a  police-captain  when  oil'  duty  was  not 
"illegal,  eoriiipt  or  otherwise  improjier  conduct"  for  wliicii  ho 
could  he  removed;"'  hut  it  has  hetm  held  misfeasance  in  olVice  for 
a  policeman  to  attack  with  his  olhcial  club  a  vrivate  citi/.cn  when 
off  duty  and  seeking  redress  for  a  private  wrong.'-'"  It  has  been 
held  that  an  ollicer  cannot  be  removed  because  he  was  iiieligibl(! 
or  disqualilied  at  the  tiiiu'  of  his  apjiointinent,  the  remeily  being  a 
(pio  warianto  ; -'  nor  (nv  an  act  prcnionsly  performed,  iich  as  bril>- 
ery  of  a  voter  befoie  his  election,  which  might  be  a  ground  for  con- 
testing the  election,--  unless  the  act  was  a  breach  of  ollicial  duly 
committed  while  in  the  same  oilice  during  an  immediately-  prece- 
dent term;  2"  nor  for  failure  to  execute  a  bond  reipiired  by  law:-' 
nor  in  the  case  of  a  jiostnian  for  failure  to  attend  the  great  court 
on  four  occasional  meetings,  anil  a  meeting  upon  a  stated  day.-'' 


"■'  MrCdinns  r.  Kiiil;,  si  Imlinna, 
327;  s.  c.  12  Am.  Ki'i'.,  V.\r,.  Si'i-  also 
Stato  ti.  (tilmori',  'iO  Kiiusas,  V:'t\  ;  s.  c. 
27  Am.  Ki'p.,  IH',1.  lint  seo  CVumium- 
wpiiltli  r.  WilliiiiiiK,  7',l  Ky.,  I'i ;  s.  c. 
42  Am.  Hop.,  2(U. 

"J  l'('(i|ilii  rx  rcl.  Caiiiplicll  i'.  Caiiip- 
bdl,  «2  N.  Y.,  217. 

"  CoiiHiiouwealtli  v.  Cliaiiiliors,  1  J. 
J.  Marsh  (Ky.),  lUS,  1(10,  per  Uiiilor- 
wooil,  .T. 

'»  C«iiiiiionwoallli  r.  Williams,  7!) 
Ky.,  42;  s.  c.  42  Am.  Ki!p.,2(ll.  i'on- 
lri(,  Kiii^;  V.  Mayer  ami  Hiiii^o.^cs  of 
GloceHtcr,  ;i  lUilstredo,  IH'J  ;  KiiiK  v. 
Taylor,  I)  Sallccld,  21)1 ;  Commoinvoalth 
V.  Ale.\anUer,  4  H.  it  M.  (.Va.j,  522. 


>'■'  I'coiilo  ex  rcl.  Leo  v.  DoDlittlc, 
44  Iliin.  (N.  Y.),  2'.i;i. 

-M)livor  V.  City  Council,  09  (la., 
1(1.") ;  I'l'oplo  ex  rel.  Ilaycs  v.  Carroll,  12 
Hiiii.  (X.  Y.),4;i8. 

-' Cojiimoiiwcaltli  v.  Lancasler,  5 
Lilt.  iKy.  1,  Kil;  People  ex  rel.  Clapp 
r.  Board  of  Police,  72  N.  Y.,  41."); 
Kllisoii  I'.  ltaleij,'li,  b'.l  N.  C,  12.'). 

'--  Coiiiiiionwi'allh  v.  Sliavor,  H  Watts 
A  S.  (I'a.),  H:i8.  People  v.  Merritl, 
Kco  Miipra,  §  !i:i,  uolo  ;)H. 

-'•  Supra,  §  lilt,  nolo  32. 

-*  Hyd<!  V.  Slate,  .52  Mis.s.,  ()(!•") ; 
Commouwealtli    r.  Slifer,  2.j   Pa.  St., 

2a. 

''^  Kox  V.  Blchurdsou,  1  Burr,  517, 


§9G.] 


KEMOVAI.   OK   .lUrXiES. 


605 


g  OO.    Itoniovnl  of  .Tii«lt;('H> 

Analopous  to  impeiiclinu'iits  aiv  proceedings  for  the  removal  of 
jiulgL'S.  Ill  Kngliind  jiulj^i's  can  lie  icniovcd  hy  tlic  crowj:  Miioii 
an  addross  by  botli  liouscs  of  I'arlianicnt.'  'riicrc  is  no  .similar 
provision  in  the  Constitution  of  tlir  Tnitcd  Slates,  wliieji  <rives  no 
remedy  except  inipcaeiunent  lor  the  niislxdiax  ior  of  a  jiidtje.  'I'iie 
constitntions  of  several  of  tlii!  States  have  pidvisiops  similar  or 
analajrons  to  the  ICnglish  practice.  In  INIai-sacliusetts,  jwdtjcs 
may  he  removed  by  the  governor  an<l  conncil  or  the  address  of 
lioth  honses  of  tlie  legislatnie.''^  It  lias  lieen  the  usual  pracliee 
in  Massachusetts  to  give  the  petitioners  for  tiie  removal  and  the 
respondent  a  liearing,  witli  permission  to  be  re[iresenteil  by  coun- 
sel and  to  offer  evidence  before  a  joint  eommittec  (d"  boih  houses. 
In  New  Yf)rk,  — 

"Judges  in  the  Court  of  Appeals,  and  justices  of  the  Suprcnie  Court, 
Miay  be  removed  hy  eoueurreiit  resolution  of  both  houses  of  tiu!  bogislu- 
ture,  if  two-tliints  of  nil  the  meudiers  elected  to  each  house  concur 
tlierein.  All  ju<licial  ollicers,  except  those  meutioued  in  this  section, 
aud  except  justices  of  the  peace  and  jialires  and  jusiiecs  of  inferior 
courts  not  of  record,  iiaiy  be  reuiove<l  liy  the  Senate,  on  the  ncomnuui- 
dation  of  the  (loveruor,  if  two-tliiids  of  all  the  ineiuln'is  elcelod  to  the 
Senate  concur  therein.  Ihit  no  removal  shall  lie  made,  by  viiiue  of 
this  section,  unless  the  cause  thereof  he  entereil  on  the  journals,  nor 
unless  the  parly  complained  of  shall  have  been  served  with  a  copy  of 
the  charges  against  him,  and  shall  have  had  an  opporluuily  of  heing 
hi'ard.  On  the  question  of  reaioval,  the  yeas  and  nays  shall  be  euliuetl 
on  the  journal. ' 

Similar  provisions  exist  in  nearly  all  the  other  State  constitutions, 
and  a  number  of  State  judges  have  been  thus  removed.  The  pi'o- 
eeedings  are  usually  judicial  in  their  nature;''  but  no  case  has 


ntt.  See  on  tho  8ul)Jeet  of  tills  soclion 
Moclieiu  on  Public  Ofllcin's,  book  11, 
ih.  vi. 

§  !»().  1  12  and  Iti  W.  III. 

'  ronslituliou  of  Massiicluisctts, 
C'h.  Ill,  Art.  1. 

3  Now  York  CoaslituUon,  Art.  VI, 
Soc.  11.  Siniiliir  provisinris  niiiy  be 
round  in  most  Slate  constiliitious. 


■•  All  iiiM'ouiil  of  a  nuMilior  i.f  tlioso 
proceedings  may  lie  found  in  the  .Vp- 
ppudix  to  this  voluMie,  infra.  Tho 
Pennsylviiiiia  Senate  held  by  a  pai'ty 
vole  in  ISIU  tliat  il  liad  no  jniisdietion 
to  nniiove  an  dllirer  lor  an  iiiipc-ieha- 
lilc  oM'iMise  l)i<fon)  ills  coiiviclion  upon 
iinpiMi'liiMcnt  or  indictnicnt.  Si'e  (lie 
pioicodings  UBaiusl  Uoyer  and   3Ic- 


GOtl 


IMIT.ACIIMKXTS. 


[('MAP.  Xlll. 


occurred  where  an  iittcuipl  li;i.s  l)/(ii  iiiailc  l)y  llio  coiirls  to  rcviiw 
them  for  irreu;vihu'ity  h\  eertif>nii'i  or  (itlierwise. 

The  most  reinarkiil)le  eases  were  two  removals  by  State  lc{,'isLi- 
tiuvs  of  jiultjes  for  ohedii.'iice  to  tin'  l'"u(leral  ( 'oiistitiitinii :  tliat 
of  .hulj,'e  l.oriii^-  in  MassaehiiHetts  for  the  enforeeiiieiit  of  the 
Fii,Lfilive  Slave  Law;  ami  that  of  .hi(lf;e  Iliiidmau  in  \\'est  Virffinin 
for  followinif  a  decision  of  the  Supreme  Courtof  the  riiited  Stales 
whii.il  overrule<l  a  dc'cision  of  the  State  court  of  appeals  and  held 
a  statute  unconstitutional  which  disqualiliud  attorneys  for  partici- 
l)ati(jn  in  the  Kehellion/' 

j^O".    l»peliiiiiiiai*y  Procoedlnyrs  on  Iiii|»<'iicliiiieiits. 

An  ini])eachnicia  is  usually  preceded  hy  the  presentment  to 
House  of  Uepresentalives  of  charges  against  an  ollicer,  eilliei-  hy 
a  message  from  the  President,'  the  petition  of  a  private  eiti/.c!i,'- 
or  the  speech  of  a  meinher  of  the  House.'^  Thereupon  a  iionniiiltce 
is  usually  apjiointed  to  consider  and  report  upon  the  charges, 
which  takes  testimony  coneerning  the  same.''  Jf  tlie  accused  de- 
mands a  Imaiing  before  the  connnittee,  that  is  usually  accorded  to 
him,  altiiougli  the  committee  has  discretioiiaiy  [lower  in  that  re- 
spect. If  ihe  connnittee  deternunes  that  the  ollicer  should  he 
impeached,  it  makes  a  report  (containing  a  statement  of  the 
cliarges  and  a  reconunendation  of  a  resolution  that  he  be  ini[)eached 
tlierefor.  On  the  adoption  of  tlie  resolution  by  tiie  House  a  coni- 
mittc('  is  a])pninted  to  inip(!ach  him  at  tiie  bar  of  the  Senate,  te 
state  there  that  articles  against  hlni  will  be  exiiibited  in  due  tiiiie 
and  made  good  before  it,  and  to  demand  that  it  take  order  for  his 
appear.in"e  to  answer  to  the  impeachuient.  Thereupon,  the  Senate 
usually  refei's  the  resolution  to  a  committee  <-.p[ioiuted  for  that 
purjjose.''  This  committee  reports  a  preamble  reciting  the  ]mo- 
ceeiliags  on  the  part  of  the  House  Ixd'oie  tlie  Senate;  and  a  n.'so- 
lutiuii :   "that  the  Senate  will,  aecordintr  to  its  standintr  rules  and 


Cauiiiiit.  Cdinpuro  Joliii  Qiiiucy  Ad- 
ams' Diary,  vol.  i,  p.  2m.  The  wcij;lil, 
of  (iiilliorlly,  liowiivcr,  supports  Biich 
reniovitls.     Si'c  Appondi.x,  itifia. 

''  Si'o  Appendix,  infra. 

§  07.  1  As  in  ricl<cM-iii|,''s  Cii.sp,  An- 
nals of  Cf)uan'.'s,  1S()2-1H0U,  p.  4(10. 

-  As  ill  roclv's  Caso,  p.  1. 


"  As  iu  Cliase'B  Caso  (Smith's  cd.), 
p.  1. 

■•  Adornoy-Goiioral  Charles  Loo 
nave  an  opinion  tliat  tliis  was  ni'<'i's- 
sary.     21)  American  State  Papers.  I'll. 

'•  Rellinap's  Impeachment  Trial, 
pp.  7-«. 


,^  ilH.] 


AUTIChKS. 


(!07 


orders  in  s\ii'h  pas*--.  |irovuK'cl.  take  ]irf)]KT  onliT  tluMvin,  (\ijiiiii 
|ili'st'liUili()ll  of  the  aitii'lrs  ol'  iiii[ii'!tfliinellt),  of  wllicli  dlH'  liulico 
will  I)'.'  ^rivcii  to  till-  House  ol'  Hcjircsentiitivfs " ;  and  that  tlio 
Secretary  of  tlie  Seiiato  a('(|Uiiiiil  tlie  IIoiiso  therewitli ;  wliieh  is 
aecordiiiffly  ailojited." 

{i$  il8.     Vrticlos  «>!'  Iniitcachiiiciit. 

'I'lie  ai'tieles,  as  tlie  cliarijes  ai'e  teinied,  ai'e  then  })ropai'ed  hy  ii 
roniniittee  of  the  House  of  HepresentativeH,  and  after  tliev  have 
i>een  repoited  to  and  a|i|)iove<l  hy  the  ilonse.  they  are  pre.--  uled  in 
a  like  inanner  to  the  Senate.  It  is  eiistoniaiy  to  have  them  siirned 
l)y  the  speaker  and  attested  hy  the  clerk  of  the  House. 

In  Kdmonds'  ease,  the  eonstitntion  of  Miehi^'aii  provided  that 
no  ini[ieaehinent  slioiihl  be  tried  liy  the  State  senate  until  after  the 
linal  adjournment  of  the  h'eislature.'  A  statute  was  passed  aii- 
thoi'izinjr  tiie  State  house  of  representatives  to  empower  the  mana- 
t^'eis  of  an  impeaeliment  "to  ]irepare  and  present  arti(des  of  im- 
peachment in  accordance!  with  tlie  resolutions  of  said  I  louse." - 
It  was  held  aLjaiiist  the  olijectioii  of  the  icspondcnt,  which  was 
ably  argued,  that  the  statute  was  eoiistitiitional  and  that  articles 
prepared  and  piesented  to  the  senate  hy  the  maiiafj;ers  after  the 
house  had  jiassed  a  resolution  of  impeaeliment  were  sullieieiit 
althoun'h  not  pi'esented  to  the  house.'''  In  liarnanrs  case,  the 
New  York  constitution  provided  that  "The  assembly  shall  have 
the  power  of  impeachment  by  a  vote  of  the  niajoiity  of  all  the 
members  elected.'"''  The  assembly  jouiiial  showed  that  tlii'  reso 
lution  of  im]ieaclimt'iit  passed  by  the  constitutional  majority,  liut 
was  silent  as  to  the  number  who  voted  t.)  adopt  the  .litielcs.  and 
ilid  not  set  forth  the  articles  at  lenijfth.  The  articles  were  not 
autlientieated  by  the  sit,'nature  of  the  speaker.  The  respondent 
liled  a  plea,  that  the  articles  were  not  adopted  by  a  niajoiily  of 
the  members  elected  to  the  iussembly,  to  wliich  the  manaji;eis  re- 
jilied  traversiiii^  this  allejijation.  Against  the  obji.'ction  of  the  re- 
spondent, oral  testimony  was  admitted  to  prove;  that  the  articles 
were  adopted  by  a  majority  vote  and  to  identify  the  articles  ]ire- 

'  Bi'lliimp'K  IiiiponchinontTrial.p.S.  ■'  KiliiKnurs  Iiiippacliiiioiit  Trial,  pp. 

S  ns.    iCenstilulion  of    Michigaii,  80  ISt,  ISH,  IHiu;,  18('>!t-]87!). 
Art.  XII.  Soc.  3.  *  New  Yorlc  Constitution  ot  1846, 

2  Miehigan.  Ad  of  Jlari'h  30,  187'2.  Art.  VI,  Soct.  1. 


G08 


IMPEACHMENTS. 


.[chap.  XIII. 


scnted  to  the  Senate  witli  those  adopted  by  the  assembly ;  upon 
wliifh  tliu  plea  was  overruled.'' 

On  tlie  trial  of  Judge  Page  in  Minnesota,  a  plea  to  the  juris- 
diction contaiiu'd  in  the  respondent's  answer  set  up  tliat  ihe 
journal  of  tin;  iioiise  of  r('[)r('sentatives  did  not  show  the  articles 
of  impcaciunent  liiiil  been  approved  b\-  the  vote  of  the  niajoi'ity  of 
the  niemlKus  elected.  The  journal  showed  siin|ily  "  That  the 
articles  wei'e  presented  and  duly  adopted."  Without  taking 
testinimiy  tin;  senate  overruled  the  i)lea.'' 

In  I[olde!i's  iiiipeaehnient  trial  in  North  Carolina,  the  house  of 
representative's  made  an  order  amending  an  article  of  impeachment 
by  substituting  another  ))erson  for  tlie  one  originally  named  as  in- 
iio'.M'ut  of  tlie  unlawful  act  chaiged  against  the  respondent.  An 
objection  was  made  to  ibis  aniendnient  upon  tiie  ground  tliat  it 

'.;ld  not  ])('  allowed  unless  new  witnesses  were  examined  before 
'he  bouse,  or  a  committee  thereoi",  in  support  of  this  charge.'' 
The  amendment  was  allowed  without  tins  requirement.  The 
answer  was  thereni)on  amended  so  as  to  meet  this  new  article  and 
a  replication  thereto  made  by  the  lion..."  In  IIubl)eirs  ease  in 
Wisconsin  tlie  managei-s  were  allowed  to  amend  the  articles  by 
correcting  an  erroi'  in  tlie  name  of  a  place  mentioned  in  the  siieci- 
iicati  IIS.  A  new  pica  and  answi'r  were  tlieii  filed  to  the  amen<l- 
niviit:  and  (he  icspondeiit's  counsel  claiui  ,(  that  the  senate 
should  lie  resworn.'' 

Thi^  Niw  York  court  for  the  trial  of  impeacliments  held  in 
liaiii  ird's  case  tliat  it  had  no  jiower  to  grant  a  motion  !)}•  the  rc- 
sp  iiidc  ;!  to  strike  ont  [lart  of  an  article  or  to  compel  an  amend- 
niciil  of  tiie  same.'"  Tlie  sn])rcmo  court  of  Nebraska  lield  that 
the  legislature  could  not  delegate  to  the  managers  the  jiower  to 
ni.iki  such  a  sid)-;taiitial  aniendnient  as  aniounled  in  ciTect  to  a 
new  artii  le." 

''  Harimrd's  Trial,  \\\>.  «('>,  CT,  !)7Ml!. 

"  i'a^'o'H  Iiiiiit'arliiiiciil  Trial,  pp. 
101-]1();  iiifm,  Appciiili.s 

"  CitliiK  opinion  of  Altorncy-Opn- 
orr.l  Charii'H  Leo,  Aniorican  Hliilc  Pa- 
pijrs,  vol.  XX,  p.  101. 

"  Holilon's  Inipi'Hcluuont  Trial,  pp. 
61-72,  101),  IDI,  Hitiira,  S  ill;  iiijrii. 
Appuadix.   Sou  tlio  urgumenl  of  Mont-      (iencial,  ;I7  Neb.,  112,  'Jl. 


(,'oini'rv  lilair,  counsol  for  tlin  rospon- 
(Icnt  in  Hi'llin.ip'H  Inipcaclinu'ut  Tri.il, 
p.  1(10. 

^  itiilibt'll's  Iiupoai'liiiipnt  Trial,  pp, 
187  ISM,  '211,  r,X]. 

'»  Harnard'sIuipoai'hincntTrial,  I'p. 
1!I2,  111.'). 

"  Stain     r.     Li'i'sc,     Ex-Allorno.v- 


§  !'8-] 


ARTICLES. 


GOO 


Ip.  Page's  impeachment  Iriiil  llic  cotinsel  foi-  the  respondent 
iiuivt'd  to  (piasli  one  of  the  artich'.s  as  insullicient,  heeanse  indeli- 
iiito.  Tiic  motion  wa.s  denied,  witli  a  provision  that  no  evidence 
siionhl  ho  received  nnder  die  article  unless  the  managers  should 
(HI  or  hcfore  a  cert.an  date  furnish  and  file  in  the  ease  a  hill  of 
particulars  to  tliat  artiide.  Tlie  counsel  for  the  respondent  ohjected 
til  tliis  upon  tiie  grouncK  that  it  amounted  to  a  permission  to  tlie 
managers  to  amend  tiie  article  without  any  action  of  tlie  house  of 
rc|ircsi!iuatives  tliereupon,  and  \Aas  in  effect  a  permission  to  tlie 
111:1  lingers  to  present  a  new  article  of  iin[iea(limeiit,  which  power 
even  the  house  itself  could  not  have  delegated  to  them  ;  hut  the 
(liijcction  was  overruled. '^ 

Tiie  a: tick's  need  not  pursue  the  strict  form  of  an  iiidietnient.''^ 
(ircat  looseness  is  allowed  in  their  eonstruction  ;  and  it  is  enstoniiirv 
to  iiiingl.-  rlietoric  as  well  as  arguments  witli  the  statenieiii,s  of  fact 
wiiich  they  contain.  In  England,  no  dciiiiurer  to  an  article  of  iiii- 
luiicliiiieiit  lias  ever  heeii  admitted:'*  Imt  our  American  practice 
;ill'ords  more  safeguards  to  the  accused.'''  The  articles  must  coii- 
li'i'i  sullicient  certainty  to  enahle  the  respondent  to  [irojierly  pre- 


'-  Th(>  iirliclp  was  ns  follows  :  — 
"  Arli<'li>  X.  Tliroii.ulidut  the  lorm 
of  olllco  of  said  Shfniian  Vufin  as 
•'ui|;,'c' of  tho  ilistric't  fourt  ill  (mil  for 
s.iiii  county  of  Mower,  to  wit:  siiico 
(■roi- iiliout  JHiiuaiy  1st,  1873,  ho,  t.h« 
i-iiii!  Shonnaii  riisjc,  iishucIi  jmltfo,  has 
liuliiliiall.v  iliMuoant'il  himself  towiinls 
till' olllcers  of  sniil  Court  anil  towanls 
till'  iitluT  olIlriTs  of  Balil  counly  of 
Mntt.r,  ill  ii  iiiaiieious,  arliilrary  iinil 
(i|iliri"isive  manner  anil  has  liabitiially 
ii^i'il  till'  |iower  investi'il  in  liiin  as 
.-■uih  jiiilui'  lo  annoy,  insnil  and  o|i- 
I'l-i-is  Hiiiii  onii'i'i's.  and  all  oilier  per- 
M'lis  who  have  ehaiieed  to  ineiir  tlie 
iii~|'leasnre  of  liiin  tlie  said  I'afje." 
i  Pace's  Ini|i(>aelinienl  Trial,  pp.  '20, 
U;:t,  l-'2,  '2:)2. ) 

'•'  Lord  Wintown's  Impoaehiiiciit 
'Iriai,  Howi'll's  Klale  Trials,  vol.  xv, 
pp.  h7.")H',»1  ;  Report,  on  the  Lords' 
•fiMMiials,  HiirUe's  Works,  Little  A 
liiown's  eU.,  vol.  xi,  pp.  i;t-41 ;  Woode- 


son's  Loetiiri's,  vol.  ii,  jip.  CiO."),  Cilin ; 
Comyn's  Dif-est,  I'arliitminl.  L.  '21 ; 
Foster's  t'rown  Law,  pp.  :fs:i,  :i',lO ; 
Story  ou  the  Constitution,  .")lii  ed.. 
§  HOH;  ManaK'.T  (leorne  I'rlsliie  Hoar, 
Belknap's  Iiiipeai'iinient  Trial,  pp.  7l) 
7."i.  Ill  li.irnard'.^  Inipeni'iinient  Trial, 
Judge  Allen  said  (at  p.  '20il )  :  "If  he 
has  been  nuilly  of  inal  or  eorric'l  ad- 
ministration of  Ills  olliee  of  Jiii'^ii  of 
the  Supreme  Court,  and  tho  fiKts  con- 
st it  iitin}^  I  lie  aili'iii'd  ma  If.  a  mee,  and 
the  ai'tioiis  or  pioeeediiitis  on  wliieh 
the  orders  were  made  or  judttnienta 
tliveii  are  set  forth  dislini'lly  and 
■  ■learly  in  the  artirles,  he  eaii  he  eou- 
vieted,  alllioiifjli  the  part ii'ular  intent 
with  wliii'li  tlie  arts  were  done  or  the 
particular  Indiieeineiit  liy  wliieh  he 
was  led  to  aet  are  not  alle(iod." 

n  Report  oil  the  Lords'  .lournals, 
Hurke's  Works,  Little  &  Brown's  ed., 
Mil.  .\i,  p.  1:1. 

"5  Injm,  §  103. 


(110 


IMPEACHMENTS. 


[CIIAP.  XIII. 


piue  liis  defense  and  to  avail  himself  of  an  acquittal  tliereupon  as 
•I  I)iir  to  anotlier  inipeachnient.'''  It  is  usual,  when  the  article 
(.•hai't;eH  a  course  of  (•onihict,  to  include  therein  a  number  of  speci- 
ticatiiuis  of  such  conduct.  In  Cox'  case,  before  the  Minnesota 
senate,  demurrers  to  certain  articles  were  overruled,  but  tiie  board 
of  inanaf,'ers  were  re(iuired  to  furnish  the  respondent  with  s])('cifi- 
cation-^  as  to  tlieni.  Tiie  senate  ruled  that  if  no  such  s[)ecificatioii8 
should  l)e  furnislied  no  evidence  shouhl  be  received  under  tliose 
artich's;  aud  after  tlie  specifications  were  lih'(l  excluded  all  evi- 
dence in  support  of  one  of  such  articles,  aud  dismissed  the  saiue.'^ 

S  !M>.    Service  of  I'i'oooss  on  lni|)«':u'lini<>iit. 

As  soon  as  the  articles  r.ve  thus  presented,  the  Senate  issues  a 
process  summoning  the  party  to  appear  before  it  to  answer  the 
articles  at  a  given  day.  Tliis  process  is  in  the  form  of  asiunmims, 
reciting  the  ai'ticles  and  notifying  him  to  appear  before  the  Si  n- 
ate  ill  a  time  and  ])lacc  named  tlicrein.  wiiicli  is  lixcd  by  it.  Ui  liln 
his  M'lswer  to  llie  articles,  aud  to  iiliide  the  orders  and  juclginciit. 
of  the  Senate  thereon.'  A  jireecpt  Utr  the  writ  naming  the  tiiiio 
liefore  the  return-day  allowed  lor  the  service  is  issued  to  tiie  scr- 
geiint-at-arnis  of  the  Senate,  who  serves  the  \\rit  citlitu-  in  jjcisdii 
or  by  clcpnty."  In  .lohiisoiTs  case  the  retiirii-ilay  of  the  sununoiis 
to  tlie  I're^idciit  was  one  week  after  its  issue  was  ordered.''  In 
Ikdknap's  case  the  return-day  was  twelve  days  alter  the  oriK  r.' 
In  the  earlier  im])eaciimciits.  wlien  liie  aceuse(l  livcil  a  long  ilis- 
taiiee  from  the  jilace  of  trial  and  the  means  of  travel  were  iiioio 
dinieiilt  and  slow  than  now,  more  time  was  allowe(l.  Tlie  nni- 
inoiis  is  si'i'ved  either  by  the  delivery  of  an  attested  copy  ti.  the 
person  a(!cused  ;  or  if  that  cannot  eonvcniently  be  done,  by  leaviiii,' 


'"Story  oil  till"  Conslitutioii.  stli 
Ami.  e<I.,  §  WIH. 

"  Inip(«irlim(Mil,  Trial  of  .Imk'n  ('o\, 
lip.  nil,  ',->{>,  :>•>'.  KKI'J.  Si'i.  Hiipni, 
§  li:).  iiole'2'!. 

§  !1!).  'Si'imli'  Itulcs  fur  Imiiciicli- 
inoiils,  VIII. 

■i  iiii.i.,  vr. 

"  Joliiison's  Iiiipriiclinirnt  Triiil.  p. 
1(5. 

'  Ui'll;imp'»  InipoiiihiiH'iit  Trl:il,  p. 


ll">.  Ill  Miiiiii'sotii  Kcrviec  of  ft  copy 
ol'  tlic  illipcilcllllKMlt,  lllllsl,  lie  milili'  on 
llin  ii'spomleiil  nl  leiist,  t wi'iily  days 
LrfoiM  the  trial  .Art.  XIII.  Sec.  r,\ 
Till'  rule  Ih  the  Hanic  in  Norlli  D.iliota 
(Art.  XIV,  See.  •2(10);  Soiilli  DiileiHi 
(Art.  XVI,  See.  7i.  In  New  I!iiin|i- 
Hlilre  8cr\lee  of  a  citation  nnisl  lie 
made  at  least  fourteen  ilays  licfere 
the  trial  (Art.  38). 


§  i»9.] 


VIJOCKSS. 


611 


,.i; 


issues  a 
SWIM'  llie 
luiinKiiis, 
l!u'  St'ii- 
it.  to  lile 
|U(l.!j;nn'iit 

till'  tillUl 
tliu  SUl- 
pcrsou 
lllllliniis 
•d.'*     Ill 

(IIILJ  llis- 

rc  nil  lit! 

ic     niii- 

V  I.,  llio 

li'iiviin^' 

>f    11    r.ll^V 

.  ni;i.l.'i.ii 

iiiiv  iliivs 

II.  s.v.  ro. 

nil  OaUdla 
nil  Oaknia 
,.\v  lliiml'- 
111  iiiii.-l  li" 
iVB  ln'fiiro 


siicli  a  copy  at  liis  last  known  i)laci!  of  abode,  or  at  liis  usual  place 
dl'  Imsiucss  in  some  co!is[)icuous  place  therein;  or  if  such  service 
is  ill  (lie  juiltrtnent  of  the  Senate  impracticable,  notice  to  the  accused 
til  a[i])ear  may  be  given  in  such  other  miinner,  by  publication  or 
titherwise.  as  the  Senate  deems  just.  If  the  writ  cannot  be  served 
(HI  time,  it  does  not  abati",  but  furtlier  service  niaj'be  made  in  such 
iiiaiiiier  as  tiie  Senate  directs.'' 

In  Humphreys'  case  the  ])rocess  was  served  by  leavinsf  a  copy 
of  the  sanii!  at  the  residence  of  the  respondent,  who  could  not  be 
finiiid  in  that  vicinity.  On  his  failure  to  apjiear  in  pursuance  of 
llic  sunnuons,  a  proclamation  for  liis  ap[iearaiue  was  served,  by 
ludcr  of  till'  Senate,  liy  iinblicatiou  in  three  newspaiicrs  in  Wasli- 
iiiL,''t(iu  at  least  forty  days  successively,  and  iine  newspaper  ]inli- 
lislied  at  Ills  I'csidc'ice  for  live  days  successively.'' 

'I'lie  old  ICiiLflish  cusloiii  was  to  cite  the  party  by  a  writ  dii'  ted 
t..  liimself  or  to  re([uirc  the  sherilT  to  sumiiKiii  him.  and  if  he  cmild 
nut  lie  foiuid  to  prochiim  tbrouo'lidUt  the  realm  that  '  >■  did  ntit 
aUciid  on  the  day  lixed  ln'  wimld   be  atlainteil.'      I  ■  liiiics, 

when  the  accused  could  not  readily  1k'  apprehended,  the  iviug  was 
addressed  in  order  that  the  jiorts  mif,dit  be  sto^iped,  that  he  niif'  ' 
be  prevented  from  takinjf  shelter  in  the  royal  jialaces.  and  at  tiie 
siiiiie  time  all  persons  were  pri)liiliited  under  certain  penalties  from 
liarlioiinir  and  eiiiicealintj'  him.'*  There  is  no  provision  (irauthoiity 
iindei'  tlu'  Conslitution  of  the  I'liited  States  tor  tiic  arrest  nf  the 
;i(cnse(l  by  tiie  Senate  or  his  suspension  finm  oiliee  peiidinn'  the 
iiiipeachmeiit."  I'doiint,  wlio.  however,  was  a  member  of  the  Sen- 
ate,  was  arrested  and  held  to  bail  mitil  tiie  termination  of  his 


'•  RuIps  fi  r  Inipc'iicliiiii'iils.  VIIT. 

"  IIiinipliri'VH'  Iiii|M'firllIii('lit,  'I'llill, 
f'iiii;^i'rssii)mil  (ilolic.  !2il  Session,  ;(7tli 
CoiiKros,  i.iirl  iv,  |i.  'J'.il'J. 

'  WociiIoscim'h  LiM'tiiri'S,  vol.  ii,  |i. 
f.ni;  cltintj  4  lusl.  3S  .T.t;  11  Seldi'ii's 
Works,  l(i21. 

«  Ibid.,  vol,  ii,  p.  (!(U;  eitiuK  2  SI. 
Tr.,  ri7;i,  T.\l  (I'll.  17:10)  ;  Com.  .Toiirti., 

■Vpiii,  i(;7n. 

^  Si'e  Profpssor  DwIuIiI'h  LcM'tiire 
onTriiilli.vTiiippni'limi'Mlsiii  AiiiPiii'iiii 
I.iiw  Hpnister,  N.  S.,  vol.  vi,  pp.  '27G- 


'27H ;  Von  IIolsl's  Ciiiisllnilioniil  Law, 
pp.  1(12  HV,i.  TIITiui.v  ill  his  Tri'iiliso 
on  (iovpriiiiu'iil  iiiiii  ('oiist  iliitioiiiil 
Linv,  p.  ;l.")l.  iii-Kiies  tlial  Coii^'i'i'ss  may 
arrest  iin  iiiipcai'ln'd  pn'sidi'iil  orolln'r 
(■fllrpi-  ami  siispcnil  liiin  from  ollit'e 
ppiidiii};  (lip  proceedini^s.  PoniPi'o.v,  ill 
Ills  Const itiitionnl  Liiw,  §  I2S,  tliiit 
this  caiiiiot  l)c>  (lone  to  an  oHlicr 
wliosp  term  Is  fixed  liy  Uip  Coiistilii- 
tioii,  lint  (liat  it  nilKlit  lie  vhen  liU. 
tonii  of  olllcp  is  niprely  stiitnlory. 


012 


TMI'KAniMKNTS. 


[chat.  xnr. 


trical.i"  Several  State  constitutions  have  jirovisions  antluiiizinu  a 
suspension  from  ollicc  in  sncii  a  cast;.''  In  tlic  State  of  Arkansas, 
tlie  ini[)eaeinn(;nt  of  (iovernor  Clayton  henan  hv  several  nieniluTs 
of  the  house  Inekinn'  tlie  j^overnor  in  the  executive  ehanilier.'- 


J5  lOO.  Maiinsff'ris  of  liiipoacliiiiont  and  Cloiiiiscl  for  I*ros«!«Miti«i». 

A  eoniniitteu  of  nianageis  is  also  a[)j)ointeil  l)y  the  House  to 
(conduct  the  inipeaehnient.  Tliese  maiiagei-s  are  alwavs  inenihei's 
4if  tile  House,  and  usually  lawyers.  In  no  i^ase  has  tlie  House  <if 
|{epresentatives  of  tiie  I'liited  States  enijiloyed  counsel  to  assist 
the  nianajrei-s  upon  a  trial  of  an  inipeaehnient.  In  some  States 
tlie  liouses  of  icjiresentatives  have  employed  counsel  to  assist  the 
managers.'  It  was  deeide<l  by  the  senate  of  California  in  Hardy's 
ease  that  tiiis  mijrht  he  done.-  On  Harnard's  trial,  the  New  York 
assemhly  was  represented  by  a  committee  of  thi;  New  York  City 
l>ar  Association  as  well  as  liy  tiie  manaLfers,  and  the  former  had 
full  control  of  the  proceedinj^s.'* 

S  lOl.    SweariiiK'  of  the  Senate. 

The  Constitution  provides  tliat  tlie  Senate,  when  sitting  for  the 
jmrpose  of  imiieachiiK  nt,  "shall  be  on  Oath  or  Atlirmation." ' 
The  members  of  the  House  of  Lords  are  not  sworn,  but  give  tJieir 
votes  upon  their  lionor."'^  It  was  natural  that  in  a  country  wdiero 
no  privileged  ca^^tc  amon  ;  white  men  was  recognized,  the  senators 


'"  Vlmrtcin's  Aiin'rii'ini  Sirii  ■  Tiinls, 
pp.  201-2(r2.  -Jno  ;  Hiiprtt,  S  '.ll>- 

11  In  Lmiislimii  (Art.  VM),  Nortli 
Iliikolii  (Art.  XIV,  Sfic.  19H),  Hoiitli 
D.ikDtii,  Art.  XVI,  Si'c.  .I),  iin  onicM- 
cannot  pRi-foriii  hin  olTlciiil  fiiiii'liouR 
iiI'liT  inipi'iicliini'iil  iind  lioforc  liis  iic- 
(|iiilUil.  So  in  JIii'lii;,'nii  (Art.  XII, 
Si'C.  '2tl,  iinil  N('W  .Tcrscy  ns  nwinls 
jiiiliriiil  olllci'i's  (Art.  VI,  Soi'.  Hi  ;  iind 
in  Ni'W  Y(irli  iis  to  juiliciiil  (ilTJccru 
lifter  llio  iirliclcK  "  Imvi-  lici'n  pi-i'fi'rrcd 
to  tlic  SiMiiilc"  (.Vrt.  VI.  Sec.  IHi.  Koo 
In  tlio  Mutter  <ir  tho  K.xi'cmIIvci  Coin- 
iiuiuii'iitlon,  12  Flu.,  ('i.'iU ;  iiml  .Vppcii- 
tilx,  infra. 

"  Atliiutic  Montlily,    vol.  xxlx,    p. 


ItHCi;  Hiiprn,  ij  :!8,  over  note  1(57;  i;  NH, 
over  notes  10  and  17.  Soi'  Appendix, 
iiifrit. 

§  1(10.  '  III  Addihon's  Caso  nnd  tliat 
of  McKcmi  nnd  Ids  assoctiit  os  in  I'enii- 
svlvaniii ;  Hnlilndl's  Caso  in  Wlsi'onsin 
and  Hardy's  {laso  In  California  ;  infra, 
.Vppi'iidix. 

-  Hardy's  Iiniicacluncnt  Trial,  pp. 
2r,,  K',-  I7;t.  In  IIiiIiIh'H's  Caso  tin) 
Slal.  ].aiil  niio  of  its  ooimsol  $.3,000 
(il>id     . 

■'  Soo  .\ppondix,  infra. 
§  101.  1  Constitution,  Artii'ir  I,  Soi'. 
tion  :). 

-  Hliickstono'sConiinentiiritw,  vol.  i, 
p.  402. 


§  102.] 


APPEAUANCE. 


613 


slumld  be  hound  in  tho  SiiniL'  way  as  jn(lo;cs  and  jurors  for  tlio 
administration  of  justici,'.  Tlit'  oatii  or  alliiniation  is  administered 
to  the  senators  liy  the  presidiiiff  ottieer  for  tiie  time  heing  of  the 
Senate.''  Wiien  the  Chief-.Instiee  jjresided  tlie  oath  was  a(hnin- 
istered  to  him  by  one  of  tlie  assoeiate  justiees  of  the  Supreme 
(\)urt.-  Wlieii  the  Viee-1'iesident  ])resided  it  was  eustomary 
under  the  former  rules  to  have  him  swoni  by  the  seeretary  of  the 
Senate.''  If  the  respondent  wishes  to  exchule  a  member  of  tho 
Senate  from  the  trial,  the  safer  praetiee  is  for  (me  of  the  other 
senators  to  object  to  his  being  sworn.^ 

^  102.    A|ti>oaraiie«  of  the  AfciiNCiI. 

On  the  return  day  of  the  process,  after  the  senators  have  been 
sworn,  the  person  impeached  is  called  in  their  presence  to  appear 
and  answer  the  articles.  If  he  fails  to  appear  in  person  or  by  at- 
torney, his  default  is  recorded  and  the  Senate  proceeds  er  parte  in 
the  trial  of  impeachment  in  the  same  manner  iis  if  a  plea  of  not 
guilt}-  had  been  filed.' 

On  the  trial  of  Judge  Pickering,  although  the  judge  did  not 
appear,  the  Senate  received  a  petition  from  liis  son  which  alleged 
liis  insanity,  and  prayed  a  })ostponement  and  leave  to  defend  for 
him.  This  was  jjresented  by  counsel  for  the  petitioner,  who  dis- 
claimed any  appearance  for  the  judge.  Against  the  protest  of 
tlie  managers  and  after  their  witluh'awal  to  take  the  opinion  of 
the  House  upon  the  subject,  the  counsel  was  allowed  to  present 
evidence  of  the  judge's  insanity  in  the  form  of  depositions;  but 
the  managers  returned  and  tlie  trial  went  oi,  in  tlie  same  manner 
as  if  the  jietition  and  the  depositions  in  su[iport  thereof  had  not 
been  presented.^ 


»  19  St.  at  L.,  34;  Rulos  for  Iiii- 
pi'nrliiiii'iil,  III;  Bclkimp'.H  Iiiipcacli- 
iiMMit  Trial,  pp.  11, 15,21,24,  29, 2211, 2:13. 

*  Johiison'M  Impcnchnipnl  Trial,  p. 
11. 

s('iiiirti''s  liiipoachmcnl  Trial, 
Smith's  I'd.,  ji.  12;  PeckV  Iiiipi'Oi^li- 
iiiciit  Trial,  p.  .W. 

"  Sec,  liowcvor,  .TotiusoirH  Inipi'acli- 
moiit- Trial,  vol.  Ill,  pp.  ;U10-40a. 

^  102.  '  Suiiato  IlulcB  for  Iiiipoai-h- 


iMi'Mt,  VIII,  X;  Pi(lic'riii(?'s  Iiniicach- 
inciit  Trial,  .Viiiials  of  Congress  for 
lH(i:t-lHll4,  pp.  .'II. -)-;)(■.";  HiiiMplu-i'ys' 
Iiiipi'achriiciit  Trial,  Connri'ssioiial 
(rlolio,  2(1  Swwioii,  liTlli  Cotifiress, 
lSi;2,  part  Iv,  pp.  2942  'i'.m.  Ah  to 
till'  necessity  of  an  appfaraiicc  in  p(>r- 
soii,  HOC  Hitpnt,  §  90,  note  'M\. 

-  Pickering's  Inipcaclinicnt  Trial, 
Annals  of  CoiigretiH  for  lb03-1804,  pp. 
32S-;t07. 


614 


IMPKACHMESTS. 


[CIIAI".  XI 1 1. 


T'^pon  Ilumplireys'  trial  no  appcaiaiice  was  made  on  iK-iialf  uS 
the  rt'spoiuk'n*.,  and  all  the  jiroceedinj^s  wore  consequently  ej- 
jxiiic/^  'I'hf  accused  may  apj)ear  in  person  or  hy  attorniiy.  In 
evcr\- trial  liel'ore  the  Senate  of  the  I'nited  States,  when;  there  lias 
heeu  no  (U.'t'ault,  tiu'  accused  has  appeared  liy  counsel.  In  several 
of  tlie  State  impeachment  trials,  notahly  those  of  Addison*  and 
Jackson.'''  tlie  accused  has  conducted  his  own  defense.  The  sen- 
ates of  several  States  have  assiuj-ned  ('oiinsel  to  the  respondent  at 
liis  iciiucst,  and  in  sueh  a  ease  a  law  may  he  passed  jiroviding  for 
their  payment  l>y  tlie  State.^  On  the  impeachment  trial  of  Jolin 
W.  llohinson.  Senator  Incjalls  ol)jected  to  the  furtlier  appearance 
of  one  of  (lie  respondent's  counsel  hecause  he  iiad  publicly  de- 
clared out  of  court  tliat  the  Senate  was  a  jury  packed  against  his 
clients.     Tiie  counsel  thereupon  witlidrew." 


|:?  !<>;{.    J*loiuliii(;:s  of  tin*  Hospoiidoiit. 

On  the  appearance  of  tiic  respondent  upon  an  impeachment  he 
is  entitled  to  lie  furnished  with  a  copy  of  the  arti(  les.  and  time  is 
allow  mI  Ilim  to  ]irciiare  his  answer  thereto.  If  lie  fails  to  [ilead, 
tlie  tria^  procceils  as  if  a  ple.i  of  not  guilty  had  heen  made,  and 
he  mav  hi  allowed  to  defend  hy  counsel  notwithstanding.' 

No  dcni  irrer  to  an  article  of  imieaciiment  lias  heen  tiled  or 
sustained  n  the  House  of  Lords.2  In  the  Senate  of  tlie  I'nited 
States  no  demurrer  lias  ever  heen  sustained,  altliough  in  the  cases 
of  Blount  anil  I5(dl;nap,  jdeas  and  implications  thereto  which  were 
analogous  to  demurrers  were  liled  and  argued.  In  the  ease  of 
Sheriff  (ireenleaf  in  Massachusetts,  demurrers  general  and  sjiecial 
to  the  several  articles  of  iinpeaehment  were  incoi'iiorated  in  the 


•'  Humplircys'  Iinpcai'liiiiont,  Trial, 
OiiiHn'ssidiial  (riolic,  '2(1  Si'ssioii,  l!7lli 
Ciiiiiiri'ss,  IKU'J,  |iiu-t,  iv,  pp.  2\H'2- 
2'.).');! ;  Scuiitc  Uulcs  for  Iiiipoacliiueiits, 
X. 

*  Infra,  Appi'inlix. 

'  Ii)J'm,  AppiMulix. 

0  Hi>l kill's  iMipciichmcnl  Trial,  p. 
72;  /ii/rn,  .\pp('ii(lix. 

'  Iinpoacliiiiont  Trlnl  ot  Jolin  W. 
Kdliiusoii,  pp.  21H-'24!I. 

§  103.    '  Bolknap's     Iiiipuaohmont 


Trial,    wii/inf,    ^   !>(!.     ]iiil    so(>   Hales' 
Ti'iai,  infra,  Appeiidi.N. 

-  Kcport  (111  llio  Lonis'  .TournaU, 
Hiu'ko's  Works,  Little  A- JSrown's  I'd., 
vol.  xi,  p.  13.  On  SiilTolk's  iiiipeaili- 
iiH'iil,  wlii'ii  the  respoMilent  I'ailed  to 
aiiswiM'  but  iilaceil  himsnif  on  tlio 
king's  (lispo.sal,  it  was  held  that  as  to 
one  article  lie  was  "neither  (leelareii 
nor  charged."  (Stiililis'  CouBtltutioual 
History,  vol.  iii,  p.  118.) 


§103.] 


PLtlADINGS    OF    KESl'ONDENT. 


U15 


respondents'  answer,  but  were  ovcituIihI/^  On  tlie  trial  of  Jii(l,i;e 
Cox  before  the  senate  of  Minnesota,  denuirrers  to  several  articles 
were  tiled  and  argued.  'J'lie  Senate  in  two  or  tliree  cases  over- 
ruled the  demurrer,  Init  directed  liiat  a  bill  of  pai  ticulai's  of  tlie 
articles  should  be  furnished  to  tlie  accused,  and  in  the  case  of  one 
article  after  the  bill  of  particulars  had  been  furnisl)e<l,  determined 
to  hear  no  further  evidence  in  supjjort  of  the  cliarirc.'  On  the 
impeachment  trial  of  .ludsfe  IJotkin,  the  Kansas  senate  sustained 
demurrers  to  several  articles.'' 

A  plea  analof^fous  to  a  j)lea  al  eommou  law  ma}"  l)e  filed  to  the 
aiticles.     This  was  done  in  the  cases  of  lUount  and  Helknap. 

Tlie  usual  e<uiise,  however,  is  for  tlie  accused  to  answer.  No 
strictiu'ss  of  form  is  required  by  the  answer.  An  answer  stating 
simply  that  the  accused  is  not  guilty  of  each  cliargc  is  sullicieiit.^ 
A  party  may,  however.  <iffer  allirmativc  reasons  as  well  as  facts 
against  the  charges,  and  for  the  purpose  of  influt'iiciiig  public 
opinion,  which  has  more  weight  with  tlie  tribunal  in  ibis  class  of 
cases  than  any  other,  that  is  tlie  usual  practice.  The  answer 
usually  begins  witli  a  reservation  of  all  exceptions  to  the  insuili- 
cieiicy  of  each  article  and  to  the  jurisdiction  of  the  court ;  tiien 
separately  traverses  each  allegation  in  each  artich;  ;  and  also 
jileads  separately  in  justilicalion  or  excuse  of  the  alleged  offenses, 
all  tlie  circumstances  attenilant  upon  caeli  case.  Tlie  answer  may 
be  accompanied  by  exhiliits  of  public  documents  or  court  rccrmls 
ill  support  of  the  defenses  plcadt'd. 

On  l?clknaj)'s  inipcaclmieiit  trial  the  res[ioiident  was  allowed, 
after  his  plea  to  tlic  jurisdiction  had  been  overruled  by  a  majoiity 
of  less  than  two-thirds,  to  lile  a  protest  against  further  proceed- 
ings. Tiiereupon  it  was  ordered  that  the  trial  proceed  as  if  a  plea 
of  not  guilty  had  been  filed."  On  the  impeacliment  trial  of  Jolin 
W.  liobinson,  the  Kansas  senate  refused  to  allow  the  respondent 
to  lile  a  jirotest  against  its  jurisdiction  on  tiie  ground  tliat  tlie 


■'•  Pli'srolt's  Irii|ir:\i'luiiiMit  Trllll, 
A|ip('iulix,  pji.  'illl-'ilt ;  HH/)ni,  !;  Ill, 
infra,  Apjiendix. 

*  C(ix'  Iinpeaehinoiit  Trial,  p.  r>i>7 ; 
supra,  §  !))!,  note  •21. 

^  Botktn'H  Inipciiolimcnt  Trial,  pp. 
215-l!('i5  ;  HHjira,  -,  'J3,  nolo  2'J. 


'"'  Ilopkinsiin's  Iiiipnai'luui'iil  Trial, 
Nicliiilsdii  s  iMipcacliniciil  Trial,  .Vildi- 
sou'h   Inipi'acliiui'ut,  Trial,  iiijru,  Ap- 

|M'IllliN. 

'  liolliiiap's  IiiipLNichiiieiit  Trial,  pp. 
.^SO-.'ii'J ;  Hupra,  (j  90.  Sec,  however. 
Lull!!?'  Trial,  infra,  .Vppcuilix. 


Clij 


IMPEACHMENTS. 


[chap.  xur. 


lower  house  had  adjourned  without  a  day;  but  allowed  the  ques- 
tion to  be  raised  by  a  motion  that  no  action  be  taken.^  On 
(loverni)i'  Wannoth's  iuipeacbnient  in  Louisiana  his  triers  relusiHl 
to  jjciiiiit  iiini  to  file  exreptions  to  tiie  jurisdiction  upon  tiie 
ground  tb;)t  neiUu'r  tliey  nor  liis  inipeaeliei-s  were  a  hiwful  h^'is- 
lative  liouse.''  Upon  Hates'  ini|)eaeiin)ent  trial,  the  (California 
senate  refused  to  allow  any  objection  to  the  jurisdiction  l)efore 
the  respondent  pleaded  to  the  articles.'*' 

^  104.    }{«'i)lk-atioii. 

After  a  plea  or  answer  is  prei)ared  and  Hied,  the  next  regular 
jiroeeeding  is  for  the  House  of  Kei)iosentatives  to  lile  a  replication 
to  the  same  iu  writing.  In  case  nf  a  plea,  the  rei)lication  may  l)e 
in  the  nature  of  a  demurrer.'  In  the  case  of  an  answer,  the  icpli- 
cation  usually  denies  the  trutli  and  validity  of  the  defense  therein 
stated  and  avers  the  truth  and  sufliciency  of  the  charges  and  the 
readiness  of  the  House  to  prove  them  at  such  time  and  place!  ;is 
shall  be  appointed  for  that  i)nrpose  by  the  Senate.  The  rei)lii  ;i- 
tion  must  be  authorized  by  the  House  of  ]{epresentatives  and  c:iu- 
not  be  filed  by  the  manageis  on  their  own  responsibility,  at  least 
in  the  absence  of  a  st.  nle  authorizing  sucli  a  j)iactiee.-  The 
practice  in  t\n'  United  States  upon  that  subject  is  the  same  as  pre- 
vailed before  the  House  of  Lords;  although  on  the  trial  of  l^onl 
Strafford,  no  implication  was  filed  by  the  Commons,  wiiich,  ac- 
cording to  a  learned  commentator,  was  >•  ii  mark  probably  of  cou- 
temptnous  insult  and  disdain."'' 

^  10.5.    I'roci'oiliii^s  on  tUv  Trial  of  iiii  Iiiiiieaeliiiient. 

A  time  is  then  assigned  for  the  trial,  and  the  Senate  at  th;iL 
time  or  before  adjusts  tlu'  inles  of  its  proceedings.  TIr;  Seniilii 
of  the  United  States  has  adopted  twenty-five  "standing  Rules  of 
Procedure  and  Practice  in  the  Senate  when  sitting  on  the  Trial  of 
Inn)eacbiiients." '     "  Tlie  j)residing  oflicer  is  ordinarily  the  \"ice- 

"  Iiii[H';i('limcnl  Triiil  of  Oolm   W.       AiMoricuii    Sliitc  Ti'i.-ils,  |i.  'Jill;    liol- 


EoliiiisDii,  pp.  I(l7-l;t:t. 

'  WiiriiKilirs  Iiiipciiphment  Triiil, 
infra,  Appendix. 

'"  Bales'  Iiupeaehiiioiit  Trial,  infra, 
Appenili.x. 

§  104.  1  Bluuut's   Caso,    'Wliarl.on's 


Ivimp's  Case,  |ip.  7I'-80. 

-  Sujmi.  §:;  !)S,  100. 

^  Wdoileson's   Ijeedires,   vol.   ii,  p. 
1107. 

§  10.").  '  S(!ualo  Manual,  pp.  105-17.1. 


S  iur>.] 


TUOCKKDINGS   OX    TIIH   TIMAL. 


61T 


l'i(  .sideiit,  01'  in  liis  iil)st'ii(Hi  the  Prcsiduiit  pro  frmporr  of  tlie 
Suiiiitf."^  AVliwi  tlic  I'lvsiduiit  (if  tlie  I'liited  States  is  tried,  tlie 
Cliicl-.histice  of  tlio  riiited  States  ]ji'esi<ies.''  Wiio  siiould  jiie- 
side  wlieii  tin;  N'ice-I'iesidciit  is  tried  lias  not  lieeii  deteiniined  ;* 
[irobiibly  tliu  president  jmi  trtn/iori;  of  tlie  Senate.  Cliief-.Iustiee 
.('liase  had  doubts  as  to  wliether  the  iiiles  of  proeediire  previously 
adopted  by  the  Senate  were  binding''  uidess  re-t!nai;ted  after  he  had 
opened  the  session  of  the  Court  of  Inipeaehment,  and  out  of  abun- 
dant caution  the  rules  were  then  readopted/'  Such  a  eonrse  was  con- 
sidered needless  on  the  suhseciuent  trial  of  IJelkiiaji,  where  no  new 
clement  was  added  to  the  Senate."     Tlu;  rules  provide  that  — 

'•  the  piesidiiig  ollieor  on  the  trial  may  rule  all  (iiu'stious  of  evidence  iiiul 
incidental  (|iiesti()ns,  wiiieii  niliiii;  shall  stand  as  the  judfiment  of  the 
.Senate,  unless  some  nieiiiber  of  the  Senate  sliail  ask  that  a  formal  vote 
be  taken  tlier<'on,  in  whieii  ease  it  shall  be  submitted  to  the  Senate  for 
decision;  or  he  may  at  his  option,  in  the  liist  instance,  submit  any 
sucii  question  to  a  vote  of  the  members  of  the  Senate.  I  pon  all  such 
(luestions  the  ^'ote  shall  be  witiiout  a  division,  unless  the  yeas  and  navs 
bo  demanded  bj'  one-lifth  of  the  members  present,  when  the  same  shall 
lie  taken." ' 

On  President  Johnson's  trial  the  jiowi'r  of  the  (hief-Justiee  to 
do  an3thin<f  exeejit  put  the  ([iiestion  \\as  disputed  by  Senator 
Charles  Snnnier  and  others  ;  but  the  Senate  voted  that  he  had  the 
full  power  given  by  the  ride  and  Constitution  to  the  president  of 
the  Senate :  and  he  exendsed  this  throughout  thi'  trial,  ruling  ]ir(;- 
liniinarily  ujion  questions  of  evidence  and  iiiaetice,  and  in  two 
such  cases  giving  the  easting  vot(S  but  did  not  vole  (in  tlie  liiial 
(iuesti(ui  which  he  imt.** 


-  Cdiistitiitidii,  Article  I,  Si'clioii  :i. 

8  Iliid. 

♦In  llontanii  (.\rt.  V,  Sec.  (1  , 
Xortli  n.ikola  (.\rt.  XIV,  .Sec.  1'.).".  , 
Sdiilh  Daliota  (Art.  XVI,  Sec.  2),  and 
Miiliif?Mii  (Alt.  XII,  S(M'.  2,,  it  is  jiro- 
vidcd  tliiil  wlien  tlie  governor  or  lieii- 
li'ii.iiit-Hovernor  la  tried,  tlio  Cliicf- 
.liistico  of  tlio  Supreliii!  Codit  sliall 
pn  side.  In  Goorfiia  (Art.  Ill,  Sec.  5  , 
I'loridii  (Art.  Ill,  S(H'.  'i'.l)  and  West 
Viif?lnia  i  Art.  V,  Sec. !)  j  ;  llio  iircsident, 
(it  tlio  highest  court  always  [ircsidcs, 


o.NC(>pt  of  course  when  lie  liimsi^lf  is 
Iriod,  or  is  n'.licrwise  dlsi|ualilied. 

■''  .loliiisou's  iMipc.'icliMUMit  Trial,  ji. 
12. 

'■  liclliiiap's  Ii.ipi'.'ii'IniKMit  Trial,  pp. 
r.»,  2(1 ;  «(/;))•((.  S  '•"'• 

"  .Senate  Uulcs  for  IiiipciichuK^nls, 
VII. 

•  .Tolinsoii'slnipoacliinoiil  T'rial,  vol. 
i,  pp.  lH."j-l«7,  27(1 ;  vo:.  ii,  p.  4si),  iS8, 
SuMiner's  ojiiMioii  on  tlie  suli.io(^t  Is 
reported  in  vol.  Hi,  jip.  281-2',tt.  At 
the  trial  o£  Lord  Melville,  Lord  Cliuu- 


018 


nirKAClIMKNTS. 


[('II.V!'.  Mil. 


Oil  tlic  iliiy  ;i]ii)<iiiit(Ml  for  llic  tiial,  tin;  IIouso  of  Iki']ii(siiil  i- 
tivcs  iipinsirs  lit  tlic  l)iii'  (if  till!  SciKiti!  citlier  in  ii  lioily  o.'  Iiy 
iir,um<4L'rs  si'li'rtt'il  tor  tliiU  imi'iiosi'.  Ijofore  tlmt  liini',  ill  llu'  iv- 
(jnust  of  L'itlicr  imrty,  siili|)ot.Miiis  to  si'iuirc  tliu  iitti'iiiliiiu'c  ui  liiu 
witnesses  may  be  issued  iiiul  servcii  by  the  ollieers  of  tiie  SriKidi 
in  iieeoriliiiK'e  witli  its  rules.  Several  States  liavo  eonsiitutiiuKil 
jirovisioiis  autbori/.injTf  or  requiring  the  trial  of  inipeachnieiits  liy 
tin;  senate  after  tlie  adjournment  of  the  lower  housi;."  lii  tiieir 
absence  —  and  none  sueh  exists  in  the  Constitution  of  the  United 
St;ites  —  the  power  of  the  Senate  to  try  an  inipeachnu'nt  after  the 
final  adjoiirnnient  of  the  House  is  extremely  doubtful.'"  'i'lu^ 
Si'iiale  of  the  I'nited  States  has  never  lussumed  sueh  power,  and 
in  Ht'lkiiiii)"s  ease  voteil  that  it  did  not  (!xist." 

Whether  an  iinpeaehment  abates  by  the  expiration  of  the  terms 
of  the  members  of  the  House  of  Representatives  that  voted  it  lias 
never  been  decided  in  the  L'nited  States.  In  Warren  llastinj^s' 
trial  in  171)1,  it  was  determined  by  Parliament,  most  of  the  law- 
yers voting  ill  the  minority,  that  an  impeaclinient  did  not  abate 
by  a  dissolution,  and  might  be  eontinued  \>y  the  next  I'arlianiciit. 
Tlu!  previous  precedents  were  conflicting.'^ 

Although  this  position  has  been  disputed,'"  it  is  settleil  ly 
jaecedent  that  the  Senate  on  the  trial  of  an  iin))eaehment  sits  as  a 
court  and  not  as  a  legislative  body  ;  and  the  proceedings  are  entitle.'. 

cclloi'  KisUino,   will)  was,   however,  a       and  Charles  llobllison  ;  Barnanl's  Im- 
peer,  ili'i'iileil  all  ciueslioiisof  ovideiiee       iieadmieiit  Trial ;   Mather'  i  Iiiiiieacli- 


witlioiil,  dispute. 

'•'  I?y  tlie  eonstilulion  of  Wesl  Vir- 
ginia i  Art.  VI,  Se('.  id:  "Tho  Senato 
may  sit  iluiin^  the  recess  of  the  le^is- 
lalnre,  forllie  '.rial  of  iinpeachmenls." 
»y  that  of  Mield>;an  (Art.  XII,  See.  3), 
Inipeaehinents  must  bo  tried  liy  tlio 
senate,  after  the  llnal  adjournment  of 
tho  h^nlslaturo. 

■"  t'onstitution,  Artieli>  I.  Section  5; 
Belknap's  Iinpeaehment  Trial,  ]ip.  !i'M, 
niiS,  ,"il2-.")lt;  Johnson's  Iinpeaehment 
Trial,  pp.  2(i-;iO,  32.  In  New  Yorii  and 
Kansas  iinpeaehinents  liavo  been  tried 


ment  Trial,  Appendix,  infra. 

u  BelUnaji's  Impeachment  Trial, 
p.  512. 

''-  IIist(My  of  the  Trial  of  Warren 
Ilasliujis,  publislied  by  J.  Debrett, 
London,  17;)('..  Introduelion  to  part 
iv.  For  tho  former  pre(!fidenl»,  see 
ibid.,  jip.  12-41,  note;  Hallam's  t'nn- 
stitulional  History,  Middl(3ton's  Am. 
ed.,  V(d.  ii,  pii.  3'.»7-10(). 

"  Seo  tho  nrKuments  of  the  man- 
agers In  Chase's  Iinpeaehment  Tiial 
and  .Tohnaon's  IinpeaehmcMit  Trial, 
piiHMim;  and  the  opinion  of  S^'iiiilor 
Sumner   in    .IoIiurou's    Impoachmeul 


after  the  ndjournment  of  the  lower 

houses.     See  Impeachment  Trials   of       Trial,  vol.  ill,  pp.  247-281. 

John  W.  Robinson,  Georgo  S.  Hillyer 


|!  Mi;.] 


KvinKNci:. 


tjl'j 


•■  III  lilt'  Sijiiiite  of  lliu  I'liiifd  Sliites  siltiiii^  iiH  ii  Cniirl  oT  liiipiMrl;- 


iiiiit. 


'11 

1« 


lu   Jil'occi'dllifjfS   iir((   foiKUutcil   .silhstiiiili: 


ll|ii>U 


oi'iliiiiu'vliials.  Ill  ii'L'MiM 


to  til 


I'  ii(liiiissi()ii  or  v'ji'clioii  of  tcsliiiii.iiy, 


llii;  t'Xiuiiiiiiitioii  and  (ross-cxaiiiiiiiiliou  ol'  wiiiics-cs.  the  iidi'S  of 


I'vidi'iici!  and  tlit;  otlu  r  (iiicstions  ol'  In 


dunti 


ansiiii. 


tlioiiuii 


tl 


icit!  IS  iin 


at  lilicralilv  and  ficcdoin  IVoiii  ti'cii'iicalilv  in 


all  tlu'Hc  respects.''''  'I'lic  jiivsiiiiiptiou  of  tliu  imiofciict;  of  llie 
arcused  is  re<;(>giii/,ed  as  in  ordinary  courts  of  laAV.'"  lie  lias  the 
riiflit  to  be  confronted  with  tliu  witnesses  a<;iiinst  liiiii, '"  ami  lias 
ill  fjjoiieral  all  rijjlits  guaranteed  l)_v  tlie  Coiislitution  to  jieisons 
iliaiifi'd  with  ei'inie  ('xe('])t  those  which  reipiiic  an  indirtnicnt  and 
jui y  trial  and  which  re_t,'iilatu  the  pi, ice  of  trial. ''^ 


t<  KMt.    JCviUfiK'o  ii|i(>ii  liiipciH-liiiuMit  Trials. 


On  the  tl 


Warren  llasuims  it  was  deteiniiiied  iiv  tiio  LordH 


that  all  the  evi(h'iiee  of  the  Coniinons  in  siip[)ort  of  all  the 
articles  should  Ix;  taken  hel'ore  the  respondent's  witnesses  were 
exaniiued.i  'I'his  has  heen  the  universal  rule  in  the  I'niled  States, 
except  when  depositions  were  admitted.  ( )ii  some  of  the  eailicr 
I'^ii'-lish  iniiieachniiiits.  iiicludiiiif  those  of   .Miildlcsi'x '•^  and  Staf- 


f( 


tl 


le  evidence  t( 


iiid  ai 


jfainsl  each  arlicle  was  taken  nj)  sejia- 


le  evidi'iiei'  was 


taken 


rately.     On  t1i(!  inipeaehinent  of  Middlesex  tl 

by  the  depositions  of  witnesses   who  were  examined  seerelly  on 

written  interrotralories,  after  the  manner  of  the  canon  law,  ^\liich 


was  then  followed  in  chaiioery ;  and  the  iieeused  was  not   allowed 

i''  MiuitiK'cr  Himr  in  liclkiuip's  Oise, 


"  (!liii't  .Tuslii'O  Cliiisc,  in  .Iciliiison's 


Im|i<'iiiliiiic'iil.  'J'rijil,  Vdl.  i,  p.  I'J;  mid  p.  H2 ;  Hlale  r.  lliisliiins  Allonii'.v- 
lhi>  pi(ii'('c<liii!,'H  ill  tli.it  caso,  and  (loiiornl,  1)7  Nob., '.)(>.  Soe  Slate  cr  rp^ 
Hclliiiap's  Inipcacliiiii'iil  Triiil,  jhwx/ii 
I'P 


Alt,(>rM(>y-(iciiiM)il  1'.  ]}iickli'y,  'A  Ala- 
I'.l  111.       Ill    Kiali'    I',    (l.'iir^'c    II.       lianiM,  n;);),  CIT  ('.21. 

'"  S'.alo  c.r  tri.   Attoriii'V-Clciieral  v. 


1 1  ;!s'i  Ilia's,  Altorney-CVi'Mcnil  and  cMlii'i's, 

n?  Xi'li.,  1)(1 ;  il,  was  le'ld,  that  ;''('  Sii-       IJiicKioy,  54  Al.-ilnuiia  .">'.lll,  (IIT-Cil. 

prciiic  Couri  acted  judicially  upon  the  '*  Suiti;  r.r  rcl.  .Vllonicy  (tciii^imI  v. 


truilof  inipi'iirlinii'iitsjuid  liiid  not  sue-       Hui-kloy,  51  Alalji 


i!MI,  (!17-i;21. 


cocd.'d  to  nay  political  l'uiicli(.iis  that 
iiii^chl  havo  been  viisli-d  in  thoSi'nal(>. 


S  lim.i  History  of  the  Trial  of  Wiir- 
pu  IlastiiiKs.  Iiulili.slii'd  liyJ.  Dclirett, 


'■'Storyon  thnCoii8lltulioii,  5tli  cil.,      London,  IT'.in,  |).  10. 


*!  Hll  ;  Report  on  the  Lords'  Jonnials, 


■^  HowcU'a  Sialic  Trials,  vol.  ii, 


pp. 


liiirUc's  Works,  LilUc  &  Urowns  ed.,       Il«:i-l-i54. 


vol. 


I'P 


(il)-l'2'2:  Senator  SiiiniiRr'i 


IIowi'll's    Statu    Trials,    vol.    Hi, 


Opinion    in    .lolinson's   Iiiipoaclinicnt       l)K'2-152C. 
Trial,  vol.  iii,  pp.  "iuli-duO. 


(iiiO 


l.MI'KACMMKNTS. 


[('IIAI', 


XIII. 


to  si'i'  ilii'ir  testimony  Im'Toi'i;  liis  iinswi'i'.*  Tpon  lui  iiiiix'iicliiiHMit 
trial  licroic  (lie  Siiprciiu'  Coiiit  of  Aliiliaiiiii,  it  wiis  licld  tliiit  tlio 
iicciinimI  liiul  tiir  coiistitiitioiial  rij^lit  to  1h)  confroiiteil  willi  the 
witiK'ssi's  iij^iiiiisl  liiiii  ill  court,  iuid  tiiiit  a  statute  wa-s  void  y\\wh 
souLfiit  to  autiiorizi,'  proof  liy  (l('|)ositioiis  of  which  lie  liad  notice 
witli  tiie  riii'h*  of  cross-cxaiuiuatiou/' 

lu  tiic  tiials  hcforc  (he  Scuatc  of  the  I'liited  StatcH  no  testimony 
liiis  been  admitted   on   eitiier  si<h!  wlien  the  witness  was  not  ex- 


aniiiieil    in 


th 


presence 


)f    the   Senate.     On   I'ii  keriuif's  trial, 


dejiositioiis  ta]<eii  h<'f(U'e  a  justii'c  of   the  peace  were  sul)iiiitl(Ml 
and    read    liefore    tiie   Senate  on  I)elialf    of    the  petition    of   the 


respoui 


U'lit' 


H  son,  ]int  no  action  was    taken  there 


upon  hy  ei 


itiier 


tlie  Senate  or  tlie  I  Ions 
rul 


!'|)on  two  State  iiniieacliuient  trial 


es  weii^  niadt^  (in  Kansas  hy  tlie  consent  of  both  parties,"  in 
Michigan  without  ohjection  ")  hy  wliicii  depf)sitions  were  admitted 
taken  otitsiile  of  the  State,  in  accordance  with  the  State  practice  in 
ordinary  trials.      In  two  I'ennsylvania  iniiieachmeiit  trials,  de[)osi- 

ed  without 


tioiis  of  w  itiu 


sscs  w  no  w( 


re  too  ill  to  altcinl  we 


■e  a( 


liiiitt 


oh 


lection.' 


Ill  1\ 

•1 


ansas  iiiijicacii 


iiieiit  trials  ti-stii 


noiiy 


taki 


sent  considered  as  read 


a  tornier  im[)caeliiiuiiit  trial  was  hy  con 
evidence.'" 

In  Helkiia])"s  impcachnieiit  trial,  an  ordtu'  was  made. — 

"that  the  iiiaiKificrs  furnish  to  the  dcfi'iulant,  or  his  counsel 
four  days,  a  list  of  the  wiliicsscs,  as  far  as  at  present  known  to  lliciii. 
that  they  inleiid  to  call  in  this  case;  and  that,  within  four  days  tlicic- 
after,  the  respondent  furnish  to  llie  inana.ni'rs  a  list  of  the  witnesses,  as 
far  us  known,  that  he  intends  to  smniiion."  " 


vithin 


I 


II  no  ( 


ase  hcfon!  the  Senate  of  the  T'liilcd  States  has  the  testi- 


•i  Howell's  State  Trials,  vol.   ii,  jip. 

iis:i^i2.-,i. 

''Slate  rx  i-7.  Attoniey-tiijiu'iiil  r. 
Buckley,  ntAlaliaaia,  pi'.  •">ii:i,  (117  C'Jl. 

"  l'l('l;orin:,''H  Trial,  .Vnnals  of  Con- 
firi'ss,  A.  D.,lH0:i-18ll.l,  pii.  XU,  ;M2 ; 
Huiirn,  S  !'"■ 

'  .lolinW.  l!oliia.-on',-;  laiiM'ai-liiiii'nl, 
Trial,  ji.  0",. 

'  Hiil)l)eirs  IiaiKsaclnueiit  Trial. 


I"  Ilillyor's  Iinpeachinent.  Trial,  p. 
Drill;  Cliaili's  Riihliison's  Inipeaehnient 
Trial,  p.  ;!:I7. 

"  r.i'lUnap'a  Ira]»'acliinpntTrial,  pp. 
.")24-r)2!).  In  Halilicll's  Inipoaclnacnt 
Trial,  llie  Wiscoaisiii  Si-Mali)  (li'iiii'd  a 
iia)li(in  <ai  liehall'  of  tlic  respdiiilcnt, 
that  the  aiaiiajicrs  furnish  liiai  a  coi',^' 
of  till'  tcstluioMV  taken  lieforo  the  As- 
Ki'MiWly   conuuiUoo    ou    the    saliji'cl. 


»  Ilopkinson's   Inipeaehaient   Trial       (Huljliell's  Trial,  pl>.  80-81.     Sco  Ap- 
aml  Nicholson's  Inipeachinont  Trial.         peadix.) 


§  107.] 


Aiir.r.MKNTa. 


621 


iiioiiy  of  tlic  rosponrlcnt  liccii  (iikcii.  Tt  was  clainicd  in  llclkmip's 
case  liy  ICx-Soiiutor  Miittlunv  II.  Ciii'in'iiti'r,  who  was  ciiuiisil  l'i>r 
llii'  ivspoiidciit,  tliat  tli(^  rcsjioiiilciit  ami  liis  wile  had  im  liylit  to 
ti'stit'v-'''  'I'liis  wasdenii)(l  Intlif  m.ina'^cis.'''  (hi  I>ainard"s  trial 
ihc  U'sliiiKiiiy  of  tin;  acciisud  was  adiiiitlrd  witlnmt  (|iitstiiiii ;  " 
and  ill  otliiM'  cases  lie  lias  been  allowed  to  iiial<c  a  slatciiiciit  in  iiis 
defense  not  under  oatii.'"'  in  accordance  willi  tlic  inacticc  on  iiii- 
[leaeliinents  before  tlie  House  of  Lords.'" 

Ill  lliilibeU's  ease,  oiiu  of  tlie  inanau'ers  asked  tlie  senate  to  draw 
an  iiifereiu'o  unfavorable  to  tlie  resj)ondent  fioni  bis  faibire  to 
testify  in  bis  own  dufensu.'"  I'"or  tliis  tins  niana^fcr  was  iciaiked 
l)y  tbe  respondent's  eoniis(d,  but  tbo  senat(^  took  no  action  in  the 
r  itter.'" 

In  lielkiuip's  ease,  the  eoniisid  for  botli  sides  coiucded  that  a 
journalist  bad  tbe  ])rivileee  of  refusing'  to  disclose  tiie  source  of 
news  wliieb  be  bad  piiblislied.'"  ( )n  llie  iiii|)eac!inu'iit  trial,  liefoie 
liie  senate  of  jMassaebusetts,  of  \'inab  a  justice  of  tlu'  peace,  l)y  tlie 
consent  of  the  respondi'iit  tlie  reconl  of  bis  eouvielion  liy  llie 
Supreme  Court  of  tiie  olfeiises  charged  aLfainsl  liini  was  ad- 
mitted in  evidence  and  beld  sutlieient.-"  On  tbe  proceed iiiLjs  for 
tbe  removal  of  Sarjjfent  and  \'inal,  jndjjfes  of  tlie  couinion  jileas  in 
tlie  same  State,  tbe  only  evidence  was  a  eertilieate  of  tlieir  con- 
viction niad(!  by  the  solicitor  of  tli(!  Coiniuoiiwealtb.  '["lie  legis- 
lature beld  tliis  suffieient  acfaiiist  tlie  protest  of  .lobn  (iuincy 
Adams.'-ii 

Jj  107.    Ar^fiinuMits  of  C'oniisol, 

Haeli  side  opens  its  own  tividence.  At  tiie  eoiKdusion  of  tbe  testi- 
iiioii}-,  tiie  parties  bave  the  riL^bt  to  be  beai'd  by  counsel   upon  tlie 


"  H("Ikiia|i'sImpoa(fliiii(>nl  Tiiiil,ii|). 

07K,  '.ii»r>. 

"  Xliuiiip'r  Scott  Lord  in  Bollinaii's 
Iinpciu'liiueiit  Trial,  p.  1039. 

"  Bttiuiinl's  IiiipHUflimuiit  Trial,  p. 
llillO. 

'"  Addison's  Impeaclimcnl,  Trial,  p. 
*101;  Jacksou's  Iiniieacliniont  Trial, 
pp.  'iM-'iT").  Hal)bcll's  Iiiipi'iichiiMMit 
Trial,  p.  7S1.     Sco  Appcmlix,  inlrii. 

'"  StittlToid's  Impcaclimi'iit  Trial, 
HowoU'siState  Trials,  vol.  iii,  pp.  1:ih2- 
1526. 


'"  JlaiiaKcr  Hiisloii.  in  nulilicUVIiii- 
pcaclinicnt  'rri:il,  p.  il'2t\. 

'*  .Iiihu  IJ.  ("hipiiinii,  counsel  fortlio 
ri"s|>oiiilciil  in  IIiililx'H's  Iiiiiii'achiiii'nt 
Trial,  i)p.  ]77'2, 177."! ;  hifnt.  Appendix. 
SCO  Wilson  V.  V.  S.,  1411  V.  S.,('.0. 

'"  Belknap's  Iinpcuchmont  Trial,  ]>. 

(;(',7. 

-'"  I'ios<'()tt's    Imiwaohment    Trial, 
,Vl)penilix,  p.  217. 
■-'  Infra,  .\pj)t'udlx. 


IMrEACUJIENTS. 


[chap.  XIII. 


wliole  case.  In  a  ^Missouri  iiiipeacluneut  trial,  the  di  fciulants' 
founse^  were  allowed  to  nialce  a  motion,  in  the  natnre  of  a  deriiur- 
rer  to  the  evidenee,  for  judgment  wlietlicr  tlie  rcspoiideiit  sliciild 
nrdve  further  answer,  'i'lie  senate,  after  tlie  argument  of  the 
motion,  refused  to  allow  the  managers  to  witlidraw  the  articles 
willi(>'it  the  permission  of  the  court.  Sueli  peiinission  was,  how- 
ever, sulisequently  granted  ])ef()re  the  decision  of  the  motion  and 
apparently  without  an}-  action  by  tlie  house  wiiieh  ])resented  the 
impeachment;  a  most  irregular  proceeding.^  The  Ilcmse  of  Com- 
mons iias  the  right  to  reply  on  eveiy  ineidenlal  as  well  as  on  the 
principal  (juestion  involved  in  the  case.-  This  right,  althoUL;li 
elaiiiiod  on  the  trial  of  J(dmson,  IJolknap  ami  15arnard,  has  hccn 
overruled  in  the  United  States,  and  on  incidental  (picstioiis  tlie 
[lartj-  on  the  affirmative  side  of  the  ([ncsliou  lias  the  rigiit  to  o)ii'u 
and  ]'(^[)ly;'^  altliough  the  managers  have  tiie  light  to  open  and 
close  the  liiial  arguments.* 

t{  108.    Doeisioii  ii|m>ii  Iiiipcaelniieiit. 

There  can  be  no  conviction  n[M)n  an  impeachment  before  tiie 
Senate  of  the  United  States  or  any  of  the  State  senates  without  a 
concuircnce  of  two-tiiirds  of  the  members  present.  In  this,  tlie 
Anieiiean  differs  from  the  Knglish  practice,  where  a  majority  of  the 
House  of  Lords,  ])rovided  at  least  twelve  coninir,  is  suHicit.iit.' 
Tlie  reoi-'vcincut  of  a  vote  of  two-third^^  for  a  convielinn  was  tirst 
made  in  the  New  York  ( 'oiistitntiou  of  1777.-  whicli  in  this  ic- 
spcrt  was  usuidly  followed  in  the  early  constitutinus  of  the  other 
Stati.'s.  Tiiat  coiistituliiin,  as  did  soi 'e  othei's,  also  re(|uii'cd  tlir 
vote  of  two-thirds  of  the  lower  house,  which  is  not  required  by  the 


§  107.  '  Lucas'  Impoaclnncnl  Triiil, 
pp.  'J78,  ass,  312-:i]i.  Ill  Hiu-ay'H 
Triiil  ill  (I.ilil'oriiin  till' prosiilinu<ilTl('iT 
Biiiil  I  pp.  '2i'iO-'i(U  >  :  "Nd  iloiilil.  t,lio 
coiMisi'l  for  tlio  priisiviitioii  liuv(>  t.lio 
ri^'lit  lo  willnlriiw  iiiiy  (iiir.  or  tlio  pii- 
\i\f  list,  of  tlic  Arlic'lca  <\t  Impoacli- 
iiii'hi,  lliiit  (Iscy  cliocihP."  Soo  §  DHaiiil 
Aiipoiidix,  infrn. 

-  liord  JIclvilIcK  Iiiipi'iK'liinoiit 
Trial,  21)  Hov  ell's  StntoTriHlH.7ri2-7('i;!. 

"Joliuson's  Trial,  vol.  i,  p.  77;   Ucl- 


knap's  Trial,  pp.  fil-C,.-),  71-S7;  r..ii- 
iiard'H  Trial,  iiifni,  .\ppi'Milix. 

*  Si'iiatc  liiili'n  {'or  liiipiMi'linu'iii-. 
XXI.  Harilv's  Iiiipcai  linii'iit.  Trial, 
p.  il'i't.     Hi'i'  .Vppciiiiix,  iiifrn. 

§  IDS.  1  ('(liuyii's  DJK'i'st,  I'arlia- 
mc'iit,  L.  17. 

••i  Art.  XXXIII.  Pi'iin's  Fonn  of  ilov- 
rrnmcnl,  in  lO'.il'i  ro([iiir<'il  (lie  presi'ii^  n 
of  a  (]iiiMMiiii  of  two-tliinis,  !i  niajorily 
of  whom  inijilit  convict.  (Pooro,  C'liar- 
((THainl  Constitutions,  p.  l.'iUn.) 


$  1(!.S.] 


DECISION. 


623 


Coiisiitutioii  of  the  United  States,  wli(>re  a  mtijorty  of  a  (luonim 
(if  Mk"  Ilc'.ise  of  KcpiH'sentativcs  can  iiiipeacli  an  ( Dicer.  'J'lu-  ol>- 
ii'<t  <'!'  liie  provisidii  cli'aily  was  to  interpose  a  Ijaiiier  against  re- 
movals for  reasons  [)nrely  [jartisan." 

At  llie  conclusion  of  tlie  evidence;  and  after  l)otli  parties  liave 
liccn  licard,  llie  Senate  proceed.s  to  llie  consideration  of  tiie  case. 
Tiie  debates  are  usually  secret,  but  each  Senator  ina\' be  allowed 
to  tile  a  written  opinion  concerning  his  vote  on  a  final  or  any  in- 
cidental (juestion.''  No  senator  can  be  challeMfjfed  l)eeauMe  ia;  has 
voted  for  the  impeachment  before  his  election  to  the  Senate,  wliile 
a  member  of  the  htwer  House,  or  f(n-  opinions  expicssed  elsewhere, 
in  piddic,  or  l)ecause  he  hiis  become  a  member  of  tlie  Senate  after 
the  e-rcater  part  of  tin'  testimony  has  been  taiien,  or  because  a  con- 
viction will  make  him  I'lesidentof  the  FimI  1  States,  or  oliarwise.'' 
A  senator  may  bi'  excused  from  votintj  upon  such  a  <j;ronud  at  his 
own  reipiest,  hut  it  is  not  usual  to  giant  sueli  permission."  The 
usual  form  of  voting  is  as  follows: — 

"  Mr.  IMouiit,  how  say  you,  is  t!ie  respondent  fiuilty,  or  not  jruiltv  of 
a  liitili  crime  and  misdemeanor  as  charged  in  the  Article  of  Ini- 

peaehiaent?  " 

Tliis  form  .if  voting  was  setthul  on  Judge  I'ickering's  trial, 
wlien  live  senators  rtd'used  to  vote,  and  ictired  from  the  ('(Hirt. — 

"  not  becaase  tliev  lieiieved  .ladge  riekoring  guilty  of  liigli  crnnes  and 
misdemcMnors.  hnt  because  they  ilid  not  chuose  to  be  comjieih>(l  to  give 
SI)  solemn  a  vnte  npon  a  form  of  (piestion  which  they  considered  an  un- 
fair one.  anil  ealealated  to  pre  'nde  them  from  giving  any  distinct  and 
explicit  opinion  npon  the  tnu  ■uid  most  iiii[iiirtant  pirint  in  the  ease; 
viz..  as  to  the  insanity  of  .bulge   I'iekering,  ami   whe'her  the  charges 


I'iiHi;!- 


"  Si'o  Slery  on  llio  ruiirtlitiiliim, 
i)  77'.». 

■•  .Toliiisiin'K  Iiupi'iulitieMl  Trial,  vol. 
ii,  p.  -ITC. ;  Helliimii's  Inipi'iiihiiioul, 
TrI.il.p.  llll'.l.  Tlii-i  prai'llciMviiH  erill- 
I'isi'd  in  ]!iu-ii;irirs  Tiiiiii'arhiiii'nt  Tiliil, 

vol.  ill,  pp.  a);i;i-'2o;ii. 

^  rii'Ui'rliiK's  Inipoiiclmii'iil  Trial, 
Aimiilfl  or  C!oii},'ri'ss,  IMi:)  imii,  p.  :i(17; 
.FolinM)n's  IiiipciirhMiont  Triiil,  vol.  Hi, 


Tri.il,  pp.  '20 -as  ;  ;i2r,-:M,-,.  On  Hiodv's 
Triiil  (pp.  ■ir)S-.l.-,',l|,  a  sei.iilor  was  nl- 
lowi'il  111  Ifike  llii'  oiilh  .il'torllie  coii- 
rlii'-ioii  of  tlin  li'siiiiioiiy  jiiiil  lo  vol.0 
iillliiHinli  lie  Imil  lii'iiril  no  pint  of  the 
proor. 

''  Ilikl.  Atklison's  Iiiipiviilniitint 
Triiil,  pp.  2n-'2H.  But  see  Hariiiiid's 
InipeaeliiMont  Trial,  pp.  0',),  7H  82, 
201'.)  2il.")H;      IiiipiMU'linieiit     Trial    of 


pp.  3110  400;   Ailill.'^oa'u  Iiiipoai'liaioiit      .Jolin  W.  Itoljliison,  p.  34.'). 


624 


IMl'KACIIMKNTS. 


[CIIAI-.  Xlll. 


contiiinetl  in  the  Articles  of  Impeaehmetit,  if  true,  amounted  in  liiiii  to 
hijrli  crime  and  misdemeauors,  or  not."  ' 

111  tlic  House  of  l.c)nls  tlic  vote  is  on  all  tlio  arti(di's,  hut  in  tiic 
.Senate  of  tlie  United  States  and  tlie  st'iiates  of  tlie  several  States, 
it  is  custoiiiaiy  to  vote  on  each  article  sepanilely,"  and  in  some 
cases  to  voli'  separately  upon  each  speeilieatioii  in  the  article.'' 
In  President  Johnson's  ease  the  Senate  of  the  United  States  I'efuseil 
to  order  that  a  vote  be  taken  separately  on  the  sjieeifieations  in 
any  article."'"  In  a  eas(Mvhere  the  result  was  not  thereby  ehaiif^'ed. 
a  senator  was  allowed,  by  unaiiiiiious  consent,  to  change  his  vote 
on  the  folliiwintf  day."  After  the  conviction  of  Joliii  W.  Iioliin- 
,son,  he  moved  for  a  new  trial  upon  the  Lfrouinl  tliat  one  or  more 
senaties.  in  pron  .niicinif  him  utility,  based  their  di'eisioii  upon 
iin  erroneous  jirinciple  of  law.'-  No  attention  was  paid  to  tliis 
motion. 

All  interestincf  ([Uestion  was  discussed  on  the  trial  of  IJelknap. 
As  lias  been  told  aliove,  more  than  one-third  of  the  senators  voted, 
Tipou  a  plea  to  the  jurisdiction  at  the  openinj^  of  the  trial,  that 
they  had  no  jurisdiction  of  the  respondent.  Upon  the  final  vote, 
it  was  contended  by  the  managers  and  by  a  large  number  of  thi^ 
Semitic  that  the  decision  of  this  iiieidciilal  (juestion  by  a  majority 
vole  was  conclusive,  and  that  all  senators  were  bound  to  vote  guilty 
if  lliey  believed  the  facts  chargeil  in  the  articles  were  proved,  even 
though  they  doubted  the  jurisdiction  or  believed  that  the  acts 
committed  did  not  aiiKMint  to  an  impeachable  eriiiie.'^  The  argu- 
iiii.'iits  in  support  of  this  proposition  were  substantially  as  fol- 
lows :  — 

The  only  (|Uestion  to  determine  against  the  defendant  whicli 
retpiires  a  two-thirds  vote  is  wlieljier  tin;  respondent  siiould  lie 
convicted."     All  other  matters  are  to  lie  decided  by  the  same  vote 


"  Pickering's    Iiii|iciiolirii('iil,   Ti'ial,  "  .laclison's  Iiiipoiicluni'iil.  Trial,  p. 

Aiiiiiils  of  ('(>ii)4n'ss,  ISOli   ISdl,  p.  :U'M.  ■K;.-.;  iiifni,  Appendix. 

^  Si'imte   Kiiles   for   Iiiipi'iii-linn'iit,  '-  IiiipencliiMeiit.  Trial  of  .lolin   W. 

XXII.  Hohiiisoii. 

'■' liariKird's     Inipeiieluiient     Trial,  I'l  For   a  (lisciis^ioii  as  to  whnllier 

vol.  ill,  pp.  'il.'il-ilTi'i ;  HiilitpeU's  Trial,  il  ro(|uires  ii  vote  of  two-tlilnls  to  llx 

jip.  7s:)-H19,  tlie  ])eiial(,v,  see  Hanianl's  Trial,  vol, 

'' Joluison's    Iiripoaehiiieiil     Trial,  Hi,  pp. '21Ht-21!i;!. 

vol.  11,  pp.  478-4S1.  »  Constitution,  .\rticlo  I,  Section  3. 


§  108.] 


DECrSION. 


0-25 


,1'Vt'U 

arts 
iruu- 

liicli 

VlltO 

i;il,  p. 
lin  W. 

til  llx 
III,  vol. 

lion  3. 


that  is  required  to  decide  any  otlier  parliamoiitarj-  question,  a  uia- 
jorit}'.  The  word  conviction,  as  defined  in  tiie  dictionaries,  means 
a  detenninatiou  of  guilt.'''  All  otiier  questions  are  preliminary  lo 
this  and  may  l)e  decided  by  a  majority.  A  majority  vote,  it  must 
he  a<lmitted,  will  decide  all  (juestions  of  evidence,  no  matter  how 
vital  to  the  success  of  the  prosecution  or  defense.'''  The  (juestion 
of  jurisdiction  is  no  different  in  principle  from  tiiis.  When  a  sen- 
ator is  asked  to  vote  on  the  question  :  "Is  the  respomlent  guilty 
<ir  not  guilty  as  charged  in  the  Hrst,"  and  in  the  succeeding,  aiti- 
cli's'.'  his  oath  obliges  him  to  vote  guiliy  if  in  his  opinion  the  evi- 
dence proves  the  offenses  charged.'"  On  Barnard's  trial,  several 
.New  York  judges  and  senators  voted  against  the  jurisdiction  as  to 
certain  articles  when  that  (juestion  was  raised;  l)ut  on  the  iinal 
vole,  considering  that  the  jurisdiction  had  Ijeen  settled,  voted  guilty 
of  the  charges  which  those  articdes  contained.'*' 

The  arguments  on  the  other  side  were  these :  The  senators  are 
judges  of  both  the  law  and  the  fact.  No  senator  can  he  justilied 
ill  voting  for  a  conviction  unless  he  is  satislied  that  the  court  has 
jurisdiction  of  the  jjcrsou  of  the  respondent,  and  that  the  facts 
charged  amoiuit  to  an  impeachable  crime.  In  the  courts  of  the 
I'liited  States  every  question  affecting  the  jurisdiction  over  the 
person  and  the  subject-matter,  exce})t  questions  as  to  the  service 
<it'  tlie  process,  cannot  he  waived,  and  maybe  raised  at  anytime 
(Vfu  on  appeal.'"  If  the  question  of  jurisdiction  sliould  not  be 
laiseil  jircliminarily.  but  reserved  for  determination  on  the  final 
vote;  it  would  hardly  be  clainn'd  that  a  senator  ^^•ilo  believed  the 
cniiit  had  no  jui'isdiction  could  conscientiously  vote  guilty,  it 
cannot  be  that  his  obligation  may  lie  changed  or  the  resjiondcnt 


'■'■' llaiiiisjrr  ScollLonl  In  Bclknnp's 
Trial,  jiji.  10'2<1;  ManaKor  William  V. 
Lyndr,  il.id.,  p.  OlH!, 

I'lUuh'VII;  Maiiat?i"i-  WilliaM  P. 
T.yiiili'  in  Hi'lknap's  Trial,  |).  1105.  ,Si>o 
K\-.(iiil(^i'  iIiTi'iniah  S.  lilack,  chiiihoI 
fill- ri'spondcnt,  lliid.,  p.  DO.^. 

"  Manager  ftcoruc  A.  .Icnks  in  Hi>l- 
kniip's  Trial,  ji.  ILIS ;  SiMiator  Hoo(li. 
ibiil.,  p.  lOT'.t. 

"  Chlof-.Judt!0  Clmrcli,  J  mini's  I'ol- 


gor    and     Unpallo,    Sonalors   I'ostiT, 
Haninicr,    liCwis    I,ord,    Jlnrpliy  iumI 
O'lirii-n  in  liarnard's  Trial,  pi>.  '^I'i'i 
•21211,  2111-21111. 

'"  llliodo  Island  i'.  MaHsacluisi'tts, 
12  rotors,  Crir,  71S  ;  Drcd  Scotl  r.  Hand- 
foiil,  1!)  Howard,  'M)^  ;  and  othor  rasoH 
I'itod  l)y  Kx-Sonat<ir  Matthow  H.  Car- 
ponti-r,  rospondonl's  coiinsol  in  liol- 
kiiap's  Trial,  i>p.  1011  n)17.  Soo  Fos. 
tor's  Fodorai  I'rnclito,  §  '.13. 


626 


IMPEACHJIENTS. 


[CHAI>.  XIII. 


])rejuiliced  in  his  constitutional  rights  because  of  the  time  or  order 
of  raising  tlie  question.  ^^ 

' '  The  Constitution  provides  that  '  no  person  shall  be  convicted  [on 
iinpeaehment]  without  the  concurrence  of  two-thirds  the  members  pres- 
ent.' Concurrence  means  more  than  occasional  union  of  minds.  The 
word  siifniiies  rimnimj  along  with  each  other.  That  is,  no  person  can 
be  convicted  without  the  agreement  of  two-thirds  of  tin'  nieml)ers  pres- 
ent upon  every  point  necessary  to  and  included  in  the  conviction."  ■' 

All  but  three  of  the  senators  who  voted  tliat  they  had  no  jniis- 
diction,  voted  not  guilty,  most  stating  at  llie  time  of  the  vole 
that  'liey  did  so  for  want  of  jurisdiction.'-'*  Tliat  lias  l)ecii  the 
usual  practice  in  tlie  senates  of  tiie  different  States.^' 

§  10i>.    Iiiiposition  of  Penalty  upon  Conviction. 

After  the  respondent  has  been  voted  guilty,  tiie  Senate  2)ro(;ec(ls 
to  iix  the  punishment  to  wliieli  lie  sliall  1)0  subjected.  The  JIoiiso 
of  Lords  has  unlimited  power  to  punish  upon  impeachments.  It 
may  and  has  sentenced  upon  conviction,  to  death,  exile,  line,  for- 
feiture, imprisonment,  or  simply  removal  fi'om  oilice  or  dis(iualifi- 
cation  from  specified  olhces,  according  to  the  nature  of  the  offense.' 

The  Constitution  of  the  United  Sttites  provides  tliat, — 

"  .ludgnient  in  Cascsof  Inipeaclnnent  shall  not  extend  furtiicr  tliini  to 
Removal  from  Odicc,  and  Disqutdiliciition  to  hold  and  enjoy  any  Ollite 
of  Honor,  Trust  or  Prollt  under  the  United  States;  but  the  Party  con- 
victed shall  nevertheless  bo  liable  and  subject  to  Indictment,  Trinl, 
.Judiiuient  and  Punishment,  according  to  Law."  '' 

Most  Stiite  constitutions  are  similar  in  this  respect. 

AVlien  the  l^'csidcnt,  Vice-President  or  an  officer  of  the  United 
States  is  convicted  upon  impeachment,  he  nuist  be  rcmov(;d  from 
office  according  to  the  express  language  of  the  ("onstitution.' 
The  Senate  has  discretion  whether  to  add  to  this  penalty  distpiali- 


■''  Senator  Coiikliug  in  Belknap's 
Trial,  pp.  90!),  91ti. 

■^'  Ex-Soiuilor  Miittlmw  H.  Ciupeii- 
tPr,  eouMsel  for  respondent,  in  Hel- 
knap's  Trial,  p.  1017. 

'-'^  lielliimii'H  Iiiippnelimpnt  Trial, 
j.p.  104!)  lO.'ill ;  Hii;)m,  §§  !HI,  i)2. 

'^  Bolkin's  Iiiipeaelmieut  Trial,  pp. 


1:170   1401).      But    see    Harnnnls    Irii- 

peaehmeut  Trial,  pp.  ilti-iXi'.).  '2144- 

•2140. 

§  100.  1  Comyn'.s  DlKe.st,  rurliiiiueut, 

L.  44. 

'^  Consliliition,  Article  I,  Seetioii  X 
'  Coustituliou,  Artielo  II,  Soetioii  1. 


i!  109.] 


PENALTY. 


62T 


ruatiou  to  hold  any  ofTice  under  the  United  States.  In  the  case 
ol'  Pickering',  removal  from  oflice  was  the  sole  penalty  imposed.* 
In  Humphreys'  ease,  disqualilication  to  hold  any  otlier  oilice  of 
iionor  or  trust  under  the  United  States  was  also  imposed.**  The 
Senate  has  no  power  to  dis(pialil'y  the  respondent  from  liokling 
olhce  un(h'r  any  State,  it  may  he  that  (hsipialilieation  to  liohl 
olliee  under  the  United  States  would  prevent  the  party  accused 
from  praeticintf  as  an  attorney  and  counsellor  at  law  in  any  of  tiie 
Federal  courts.^ 

In  impeachment  trials  hefore  the  State  senates,  tliose  convicted 
have  hee'i  sentenced  to  suspension  from  office  for  a  sliort  term;^ 
to  removal  without  any  dis(iualification,''  to  removal  witli  dis(piali- 
iication  to  hohl  tiic  office  in  wliicli  tin;  offense  was  committed,® 
to  removal  witli  disqualilication  to  hold  any  judicial  office  for 
a  term  of  three  years,'"  to  removal,  dis(iualilication  for  thirty 
years,  and  a  tine  of  six  hundred  dollars  to  pay  the  costs,"  anil  to 
removal  with  pcriictual  dis(jualificalion.'- 

A  discussion  took  place  n[)on  the  trial  of  IIum[)hreys'  impeach- 
ment as  to  the  form  in  which  the  penalty  should  be  determined. 
It  was  helieved  hy  some  senators  that  the  proper  method  was  to 
first  vote  \:helher  the  convict  should  he  removed  from  office,  and 
then  whether  he  should  also  he  discpialitied.  It  was  feared  lest 
the  adoption  of  the  first  ([uestion  might  he  considered  to  amount 
to  a  judgment  imposing  a  sentence  which  would  prevent  the  im- 
position of  any  further  penalty,  and  lest  its  rejection  might  he 
considered  as  a  judgmt'nt  of  ac(iuittal.  So  the  division  w:is  taken 
upon  an  amendment  adding  discjualilication  to  the  motion  for  a 
removal.'''      It  seems  tiiat  allhoU'di  a  vote  of  two-thirds  is  essen- 


■•  Plckciing'H  'I'linl.  Aiiiiiils  of  Con- 
RFPHS,  IHOIl  ISOt.  pii.  ;tG('.-:<(!7. 

^  Hiiiiipliri>yrt'  'trial,  Connivssioii.nl 
rrldlio,  M  Sossiiiii,  ;i7lli  CoiiKi-oss,  1H(!1, 
1K(;2,  imit,  iv.  pp.  'i'M'i  'iliri,'). 

"  Si>(' Adilisoii's  Trial,  pp.  irii-lu't; 
Kx  parte  (Itoliind,  t  Wiill.,  ;t:i;),  .'}7M. 

'  III  OIK!  pnso  a  year.  Hunt's  Im- 
ppucliiiKMit  Trial;  .\ppi'iuli.K  lo  Pnis- 
I'ott's  Iiiipoacliiiiciit  Trial,  p.  21C ; 
infra,  .\ppi'iiili.\. 

•  Trials  of   Kohinaoii  and  HiUyor, 


Hardy 'a  Trial,  Groonlcaf's  Trial,  But- 
ler's Trial ;  I'li/ni,  .\pp('iidi.x. 

'■'  Addison's  Trial,  infrn,  .\ppoiidix. 

"1  C;ox'  Trial,  pp.  ■JtlS,-)-2'.IH'.» ;  iiifni, 
AppiMidix. 

"  Osljoruc's  Trial,  intra,  .\|ip.Midi.K. 

1'-  Hariiard's  Trial,  Davis'  'trial, 
Holiloii's  Trial,  Kra/icr's  Trial,  (iold- 
siuilh's  Trial ;  iiifn,  ,\p|"'iiilix. 

"  Ilnniplircys'  'trial.  I'oiinrc-.ssiiMial 
Globe,  '2d  Session,  ;i7lli  Congress,  ISIll, 
18(i2,  part  iv,  pp.  2!)51-aU53. 


ni>8 


l.Ml'KACHMKNTS. 


[chap.  XI ir. 

tial  to  a  I'oiiviction,  a  bare  majority  may  impose  the  seiiteiicc." 
Fu  the  Senate  of  tlie  United  States  the  sseeretary  of  tiiat  hodv  is 
nsiially  directed  to  enter  the  judgment;  and  a  certified  copy 
thereof  is  deposited  by  him  in  tlie  otliee  of  the  Seeretar}-  of  State. '^ 


g  110.    I>ai'<loiis  to  linpcacliiiKMits. 

The  Constitution  expressly  excepts  cases  of  impeachment  from 
tliose  in  which  tlie  J'residcnt  of  the  I'nited  Stales  has  power  to 
jfrant  reprieves  and  par(h)ns.' 

In  England,  after  tiie  contlict  in  Lord  Danl)y's  case,  it  was  ])r(>- 
vided  in  tiie  Act  of  Settlement  that  the  king  should  have  no 
power  to  grant  a  jiardon  which  might  be  pleaded  in  an  impeacli- 
ment,  but  that  he  migiit,  after  conviction,  by  a  pardon  relieve  the 
convict  from  the  punishment  thereby  imposed.^ 

"The  dilTerence  is  very  important,  for  the  paritou  is  not  to  be  al- 
lowed till  after  3iiil<;inent ;  it  tiien  comes  too  late  to  clear  away  the  con- 
sequences of  attaiiiilcr;  the  blood  ceases  to  be  inheritable  and  cannot 
be  completely  restored  but  by  act  of  rarliament ;   the  king  may  indei'il 


n  Barniiril's  Impenchnient  Trial, 
vol.  iii,  pp.  aiH-t  UlUit. 

"'  Seuati'  lluU'H  for  liiipeachmonts, 
XXII.  In  H()l<li'u's  luipcachiiieul 
Trial,  pp.  2mH--2r,r,',),  thi'  following 
jadgnipnt  was  made  by  th((  Senate  :  — 

"Tlie  Stale  vs.  William  W.  Holden. 

"Wliereiis,  llio  liouse  of  repi'escn- 
lallves  of  I  he  State  -f  Norlli  Carolina 
(lid,  on  the  'ililli  day  of  Decendier, 
is7n.  «\tul>it  lo  the  Senate  artieles 
of  impeaehmeat  against  William  W. 
Jlolden,  governor  of  North  Oaroliun, 
anil  llio  said  Sen.ite,  afler  a  fall  hear- 
ing ami  imparlial  trial,  has,  t)y  Ihe 
voles  of  two-thinis  of  llie  memliors 
present,  this  day  rleterndneil  that  the 
said  William  W.  Hidden  is  gnilly  as 
charged  in  the  Ud,  4th,  .''.Ih,  (Uh,  7th 
and  Hth  of  said  iirtieles; 

"Now,  therefore.  It  Is  adjudged  by 
the  senate  of  North  Carolina  silting 
as  a  eoiirt  of  impeaelimeni,  ;il  llieir 
clmmber,  in  lhc>  city  of  Kaleigh,  thai 
tho  said  William   W,   UoUlon   lie   re- 


moved from  the  ollleo  of  governor  and 
l>e  discpnilifled  to  hold  any  olliee  of 
honor,  trustor  prollt  under  tho  State 
of  Nialli  Carolina. 

"  It  is  further  ordered,  that  a  eO|iy 
of  this  judgment  lie  enrolled  and  eer- 
lified  by  the  chief  justice  as  jiresiding 
olTlcer,  and  the  principal  clerk  of  the 
senate,  and  that  such  cnrlilieil  co])y  be 
deposited  in  the  olllce  of  tlie  secretary 
of  state."  In  Co.x'  Impeachment  Trial, 
pp.  2!)K,5^21)H',),  the  judgment  recited 
at  lengtli  tho  articles  on  which  tho 
respondent  had  been  convicted.  It 
has  been  said  that  a  court  of  cominon 
law  upon  tho  trial  of  an  inilictm(>nt 
Is  not  bound  by  the  rulings  on  an  ini- 
peachmenl  for  the  same  olTenso.  Slati' 
II.  Town  Council  (K.  I.),  27  All.  Hep.. 
59'J,  ljl)2. 

S  110.  1  Article  II,  SocUon  2. 

'■i  Howi'U's  Stale  Trials,  vol.  xl,  pp. 
725-804;  i:i  AV.  Ill,  oh.  2;  Ilallaiiis 
Constllutiiaial  History,  Widdletou's 
ed.,  vol.  ii,  pp.  3it2-396. 


§110.] 


PAUDON. 


6:29 


roleano  forfeitures  and  confer  now  titles,  Imt  caiiuot  revive  tiie  family 
lioiiours  iu  their  anticiit  state  of  preeedeiice."  ° 

Moreovor,  iis  was  shown  in  tliu  cast;  of  Stmffonl,  tlio  king  would 
1)1^  less  likel)-  to  faci!  the  storm  of  [mhlic  o2>ini()n  after  a  conviction, 
at  the  end  of  a  [)ul)lic  trial  in  -which  the  proof  and  the  enormity 
of  the  offenses  had  heen  spread  ahroad,  than  hefore,  when  it  might 
well  ho  claimed  that  the  pardon  was  granted  to  protect  an  inno- 
cent party  from  the  expense  of  a  defense  against  unjust  charges. 

If  an  oflicer  of  the  United  States  cannot  resign  his  oflice  with- 
out the  consent  of  the  i)Ower  that  appointed  him,  and  the  doctrines 
supported  hy  the  niinority  in  lielknap's  case  he  finally  upheld, 
the  President  may  indirectly,  hy  the  acceijtance  of  a  resignation, 
accomplish  what  he  cannot  do  directly  hy  a  pardon.^  1'he  Georgia 
Constitution  of  171)8  pardoned  all  previous  convictions  on  im- 
peachments.'' In  England  a  judgment  of  conviction  upon  an 
impeachment  can  he  reversed  hy  an  act  of  Parliament.  Whether 
such  a  power  exists  in  Congress  remains  undecided.^ 


'  Woodeson's  Lectures,  vol.  li,  p. 
015. 

*  Belknap's  Impeaclimenl  Trial,  su- 
pra, S§  9(1,  92. 

'Art.  IV.,  Sec.  8. 

•>  See  tlie  prooeediiiKs  as  to  tlicii(?r- 
sons  iiiipeucliod  by  the  Oood  I'arlla- 
iiK'iit  (Stubb.s,  Couslitutioiml  History, 
2(1  ed.,  vol.  il,  \>.  IM),  and  on  tlie  bill 
to  reverse  Strafford's  attainder,  which 
failed  to  pass  (Howell's  State  Trials, 
vol.  vil,  i)p.  iriTl-lSTfi).  Attainders 
upon  convictions  before  juries  and  on 
bills  of  attainder  have  been  often  thus 
reversed  ;  e.  ij.  in  Lord  Russell's  case 
(Howell  s  State  Trials,  vol.  ix,  p.  (!*-)); 
iu  Strafford's  case  (ibid.,  vol.  iil,  p. 
liVifi)  ;  Hcilingbroko's  cas(!  (ibid.,  vol. 
XV,  p.  lOdt ,  ;  and  others,  in  Hatsell's 
Precedents,  3d  ed.,  vol.ii,  pp.  3;)7-;i;iS, 
vol,  iii,  pp.  -tT-iS.  C<i.  Dr.Bireh  says,  iu 
his  Life  of  Sir  Walter  Kaleit,'h  :  "Mr. 
Carew  Kaleigh  uieulionsthatou  hisad- 
dressinn  himself  to  the  Parliament  to 
bo  restored  iu  blood,  Kiiit?  Charles  the 
First  sent  to  him  and  told  him  plainly, 


that  on  the  obligation  of  lO.OOOJ.  he  had 
jirondsed  tlie  Earl  of  Uristol  to  secure 
his  title  to  Sherburne  Casllc,  and  the 
estate  belonging  to  it,  against  the 
heirs  of  Sir  Walter  IJaleigh  ;  that  now, 
being  King,  he  was  bound  to  make 
good  his  proluis(^  and  therefore,  un- 
less Mr.  Kuleigh  would  quit  all  his 
right  and  title  to  Sherburne,  he  neither 
would  nor  could  pass  his  Bill  of  re- 
storation. AVhereupon  he,  Mr.  Ral- 
eigh, Oeing  then  twenty  years  of  age, 
left  friendless  and  fortuneless,  was 
prevailed  on,  by  the  pnunise  of  a  sub- 
sislenc(>,  to  oonforin  to  the  King's 
will."  The  truth  of  this  story  is  con- 
llnned  by  the  title  of  the  Hill:  "An 
Ai't  for  Ri>stitution  in  lilood  of  t'arew 
Kuleigh,  sou  of  Sir  Walter  Raleigh, 
hito  attainted  of  High  Treason;  aiul 
for  con(lrn\alion  of  certain  Letters 
Pat(>nl  nnule  by  our  late  Sovereign, 
Lord  King  James,  to  .lohn.  Earl  of 
Hrislol,  by  the  name  of  John  Illgby, 
Knight."  (Hatsell's  Precedents,  M 
ed.,  vol.  iii,  p.  G2,  note.;     The  Mussa- 


630 


IMl'KACHMENT8. 


[UHAP.  XUI. 


§  111.    Concluding  Observations  upon  Iiniicai-linicnts. 

Jefferson,  in  liis  (lisapiioiiitiiiciit  at  tlic  iiequittiil  of  Cliase, 
ternu'il  iinpeiiclinuMit  tlio  scarecrow  of  tlii^  Constitution.'  A  bet- 
ter metaphor  is  that  of  Soniers,  wiio  ealkHl  it  tlie  sword  of  (iohath, 
wliieii  is  l<ept  in  the  tenipU;  and  brought  f)nt  only  on  great  occa- 
sions.- I'o  a  superficial  ol)server  t\n'  former  term  may  seem  aj)- 
propriate.  Yet  even  ihat  homely  object,  which  we  moderns  have 
l)ut  in  tlie  place  fonnerl^'  occui)ied  by  the  god  l'ria[)ns,  has  its 
uses,  'i'he  fear  of  the  disgrace  has  caused  the  resigiialioii  of  many 
corrupt  judges.  State  anil  Federal,  who  shall  here  be  nameless. 
It  has  caused  many  others  to  observe  a  certain  respect  for  public 
ileceney  which,  had  it  not  existed,  the}'  would  have  un<loubte(lly 
thrown  off.  It  has  made  at  least  one  President.  Andrew  .lohu- 
son,  obey  laws  which  he  considered  unconstitutional,  but  which 
hail  been  passed  over  his  veto,  and  in  some  State  courts  at  least 
has  caused  judges  to  respect  statutes  of  doubtful  constitutionality 
which  they  would  otherwise  have  disregarded.''  >i'ow  that  nearly 
all  the  State  constitutions  pennii  the  removal  of  judges  by  the 
votes  of  two-thirds  or  less  of  the  nuMubers  of  a  legislature,  this 
simpler  remedy  is  usually  applied.'*  lint  no  such  procc'cding  by 
Congress  is  authorized  by  the  Constitution,  and  inipeachniciits 
have  proved  eilicaeious  in  the  United  States.  Although  there 
have  been  many  acquittals  where  the  guilt  charged  seems  to 
have  been  flagrant;  yet  the  Federal  judiciary  has  thus  been 
purged  in  one  ease  of  a  drunkard,*  and  in  another  of  a  niaii  who 
was  waging  war  against  the  Fnion  while  retaining  the  legal 
j)ower  to  free  by  habeas  corpus  any  of  his  allies  who  were  arrested 
for  treason  or  made  prisonere  of  war."  In  the  State  senates  the 
convictions    of    Addison,    Davis,   Barnard  and   Cox "    have  been 


chuBotts  legislnturo  in  1711  rnvorsod 
thojudfjiiipntsof  conviftioii  for  wiloh- 
<!raft.  Tho  Kliodo  Islaiiil  IcKislatun- 
in  1854,  atU'Y  his  panloii,  revcM-sed  tho 
oonviolion  of  Dor*:  for  treason,  HKaiiisl 
the  protest  of  the  jmliciary  of  that 
State.  (Oi)ini(  n  of  JudKPs,  3  R.  I. 
Supp.,  29'.).  See  Burgess,  Political  Sci- 
ence, vol.  il,  p.  337. 


§  111.  1  .I.'fTcrson's  Works,  1st  cd., 
vol.  vii,  p.  l'J2. 

2  Howell's  State  Trials,  vol.  xv,  p. 
130-1 ;  Grey's  Debates,  vol.  x,  p.  2()fi. 

•■>  Sitprn,  §  3«. 

*  Siiimt,  §  !)8 ;  infra,  Appendix. 

'  Pickering's  case,  nupra,  §  !)0. 

'  Humphreys'  case,  itupra,  §  90. 

'  Supra,  §  94,  infra,  Appendix. 


§111.] 


CONCLUDIVO   OBSERVATrONS. 


681 


well  needed  and  salutary  examples.  Were  the  power  absent,  we 
should  have  no  check  to  executive  or  judicial  tyranny.  The 
necessity  for  its  existence  aud  for  cautiou  in  its  exercise  is  one 
of  the  strongest  arguments  in  favor  of  the  perpetuation  of  the 
Senate.* 


'  Woodcson  Bays  in  liis  Lectures, 
vol.  ii,  i>p  30i)-37() :  "  For  tho  last  coii- 
liiry  nnd  .a  half,  private  persons  ini- 
pcNichoii  by  tlio  Commons  liave  cither 
sunk  nndortlio  unoiiual  stru^Kle  with 
iho  jiuai'ilians  of  tho  piil)li(^  purse,  or 
have  l)c<'n  only  preserved  liy  large 
fortunes  from  at)soluto  ruin." 

.Judge  Stephen  says  of  parliament- 
ary impeachments  :  "  It  is  hardly  prob- 
able that  so  cumbrous  and  unsatisfac- 
tory a  mode  of  precedure  will  ever  be 


resorted  to  again.  The  full  establish- 
ment i>r  popular  government  and  the 
I'lose  siip(>rintendeni'e  nnd  inimcdiate 
control  exercised  over  all  public  offl- 
cers  whatever  by  [larliament,  nuike  it 
not  only  entirely  unlik(.'ly  that  the 
sort  of  crimes  for  which  men  used  to 
bo  impeached  should  lie  committed, 
but  extremely  difTlcult  to  comndt 
them."  (Stephen,  History  of  the  Crim- 
inal Law,  vol.  i,  p.  100.) 


The 

inil)i>!u 
ell's  SI 
tlesci'il 
uoarly 

States 
ported 
rare  iin 
his  owi 
lieves  ( 
tliem  is 
the  stiK 
States, 
and  law 
to  exaii 


Tlie « 
nieiit  w! 
ernor  S 
liy  inha 
approve 
twelve  I 

That 
prctendi 
aud  cic! 


1  Supr 
■'  Vol. 


APPENDIX  TO   VOLUME   I. 


STATK   IMPKACIIJIKNT   TRIALS. 


The  prccodinfj  text  contains  a  history  of  all  iin])cacinTiont  liiiils 
lu'fore  tiie  Soiiali!  of  tlie  L'liitwl  Stiitcs.'  All  of  ijio  iiiipoi'taut  Kn<rlisii 
iinpeachnients,  except  that  of  Warrt'ii  Iln.stings,  may  bo  found  iu  How- 
ell's State  Trials.  The  early  ones  which  arc  not  in  that  collection  are 
described  by  Stubbs  in  his  (.'onstitntional  llislorv,  and  a  list  which  ia 
nearly  complete  may  be  found  in  Stephen's  History  of  the  Criminal 
Law."  The  ini])cachincnt  trials  before  the  senates  of  the  dilTcrent 
States  are,  however,  very  little  known.  Some  of  them  were  not  re- 
ported cxce]it  in  the  journals;  and  the  reports  of  mcjst  of  the  rest  are 
rare  and  hard  to  find.  The  author  has  found  but  one  library,"  except 
his  own,  where  any  attempt  to  collect  them  has  been  made  ;  and  he  be- 
lieves that  no  complete  colleetinn  exists  at  any  ])lace.  Yet  none  of 
them  is  uninteresting; ;  and  they  abound  with  material  of  <;reat  value  to 
the  student  of  the  manners  and  local  liistory  of  the  people  of  the  I'nited 
States,  as  well  as  to  those  who  are  interested  in  constitutional  history 
and  law.  For  this  reason,  an  account  of  all  the  writer  has  been  able 
to  examine  is  here  inserted. 

COLONIAL  IMPEACHMENTS. 

The  earliest  colonial  proceeding  that  bears  any  analogy  to  an  impeach- 
ment was  the  suspension  by  the  proprietors  of  North  Carolina  of  (iov- 
ernor  Seth  Sothell,  in  a  letter  dated  December  -'d,  1(181»,  upon  chari^es 
by  inhabitants  of  the  colonial  county  of  Albemarle  which  had  been 
a|)i)roved  by  the  Assembly,  who  had  made  him  abjure  the  colony  for 
twelve  months  :  — 

That  he  seized  two  persons  coming  into  Albemarle  from  Harbadoes, 
pretending  that  they  were  pirates,  although  they  produced  "  cockets  " 
and  clearance  of  their  goods  from  the  governors   of    Harbadoes  and 


1  Supra.  §  1)0. 

■'  Vol.  i,  lip.  Ito-L'Su. 


'  Tlio  New  Yorli   Stiito  Library  at. 
Albany. 


U33 


r,:!4 


STATK    IM1'KA»'II.MI;NT   TItlALS. 


[An-. 


ru'iiiiiKliis.  'I'liiit  111'  ki'pl  llii'st'  |M'i-soiiH  iiiipiisoni'il  witlioiil  iit(i'Mi|iliii;r 
to  liriii<{  tliciii  to  triiil,  :iii<t  oiit'  of  llit'lii  ilifil  of  ill  iis:it;i'.  'i'li.'it  hi'  wlin 
(lii'il  li'ft  !i  will  iiiiiiiin;^  11  rollock  liin  I'xcciilor,  lint  HotlifU  woiilil  iiol  Irt 
liiiii  prove  the  will  imi'  siilTci' tlii' coiii't  to  nttt'St  tliiit  I'dIIocIv  liiid  olTiri'd 
to  piovc  il,  Imt  took  nil  this  iiiiiii'h  liind  anil  t'onvertiMl  it  to  liis  own  use. 
'riiiit  wlii'ii  Pollock  nswoi'tcd  liis  intention  to  come  to  I'jn<j;lniid  to  coin- 
pliiin  ol'  this  injnslicc,  Solliell  inipriHoued  liiin  without  any  rciisoii. 
'J'hat  lie  withdrew  for  brilies  accusations  for  felony  and  treason.  That 
he  nnlawfully  imprisoned  one  Hohert  Cannon,  Iiesides  other  charfjos 
of  unlawfully  sei/in<;  land  and  cattle  ami  other  unjust  actions. 

lie  was  ordered  to  come  to  I'jiglaiul,  and  if  he  did  not  come  the  pro- 
prietors said  they  would  ohiain  a,  mandamus  from  the  kin;^,  to  compel 
liim.  To  investigate  these  matters  they  told  their  emissary  to  send  them 
depositions  and  to  see  that  justice  was  done  to  those  injured  by  Sothell.^ 

The  first  ])roceeding  that  closely  resenil)les  an  impeachment  by  a  co- 
lonial assembly  seems  to  have  occurred  in  Massachusetts  in  171)11,  upon 
the  charjie  aj;ainst  William  lioiisc,  Samuel  Vetch,  John  Horland,  and 
l{ou;er  J/iwpjn,  of  furnishinj;;  military  supplies  to  the  Acailians  while 
they  were  at  war  with  England  and  the  colonies.  On  .lune  25lh  the 
house  sent  a  nessage  to  the  council,  asking"  that  such  proceedings, 
examinations,  trials  and  judgments  might  be  had  and  used,  u[)on  and 
relating  to  the  said  persons,  as  were  agreeable  to  law  and  justice." 
The  coimcil  determined  that  the  proceedingH  should  be  taken  at  the 
next  session  by  a  bill  of  attainder.  At  the  following  session,  in  August 
of  the  same  year,  at  a  conference  between  the  two  houses,  the  form  of 
a  bill  of  attainder  was  determiiieil.  A  copy  of  the  charges  was  delivered 
to  the  accused,  to  whom  John  Phillips  and  ]'',bone/.er  Collin  had  been 
added,  and  they  were  successively  arraigned  and  tried  before  both  houses 
in  joint  session.  A  vote  of  the  houses  in  joint  session  convicted  all,  and 
a  joint  committee  reported  on  the  jjunishmeuts.  A  separate  act  wan 
jiassed  fining  each.  The  tines  varied  from  eleven  hundred  to  sixty 
pounds.  These  acts  were  in  the  following  year  annulled  by  the  (^ueen 
iu  coimcil,  upon  the  ground  that  "the  crimes  in  the  said  several  acts 
mentioned  "  were  "  in  no  wise  cognizable  before  the  general  assembly, 
in  regard  they  have  no  power  to  ]iroceed  against  criminals,  such  i)ro- 
ceedings  being  left  to  the  courts  of  the  law  there."  The  Queen  further 
ordered  that  the  fines  should  be  repaid.^ 


*  N.  0.  Colonial  Kecords,  vol.  i,  pp. 
350  370. 

'  Palfrey,  History  of  Now  Englauil, 
1689-1727,     pp.     277-2H1.      Sco    also 


Chalmci's,  Introduetion  to  tlio  His- 
tory ot  the  Revolt  of  the  Colonics 
book  vii,  eh.  ill. 


AIM', 


<•(  »r,(  )N'I  A  I,    I  M  PKAC 1 1  M  KNTS. 


Ill  1711.  liip  IloiiHi'  of  Di'lciiiiti's  of  North  Ciiioliii 


II  iinix'Mclii  ( 


(■:uvv. 


Ilic    Di'piily-' lovi'iiior,  fof  rclicllioii,  mid  Hout  lliiii  to  Kii;!,l:iiul  for  Iii;il 


1 1)1'  trc; 


)ll,   wl 


iiMc  till'  l)i'oc('(Mliii;^s  Hcciii  to  liavc  liccll  diopl 


III  1717,  the  AMSiMiil)ly  of  Soiitli  (':iroliii;i  iiii|i('iichi'(l  ('hicf-.liiMiice 
Trot  on  the  clmnjo  "  of  hiiviii;;  (■iijirosscd  tlu'  whoit-  judicial  iiowor, 
iiy  iu'tiii^j  iiH  Judfj'  of  tim  King's  liuiich,  the  coiiiiiioii  plciis,  and  tlii! 
iidiiiirulty."  lie  v hh  found  <;iiilly  l)y  tlie  coiinfil  and  rcinovcd  from 
olllc.'.' 


In  tl 


11!  saiiu'  colonv,  in 


r,  (  hii'f-.IiHtiei'  Allen  was  iiiipeaehed  liy 
the  lioime  for  deiiyiii;;  tiie  writ  of  halieas  corpus  to  a  man  named  Smith, 
who  iiiiil  l)eeii  cominilted  for  hijih  treason,  peiidiiii^  a  '.evolt.  No  trial 
seems  to  have  ever  talieii  )iiace." 

In  1771,  the  Massachusetts  llonse  of  Kepresentatives  iiiqieached  lie- 
fore  the  council  (  hief-.Iiistice  IVter  (Hiver,  for  acceplinu  a  salary  from 
the  Crown  out  of  the  revenue  duties,  instead  of  dependiiiij;  upon  the 
tieneral  Court   for   his    comi)i'nsalioii,   as  had   heeii   the  previous  law. 


■II 


le  pro( 


'ee<Uii<rs  are  tliiis  desi'ribod  l>y  .loliii  Adams  with  his  character- 


istic egotism  ; 


"The  pulilie  had  hiiij;  heen  alarmed  with  rumors  and  preilirlions  that 
the  Kin;;,  that  is  *''c  ininislrv,  would  lake  iiiln  their  own  hands  the  ]iay- 


iiient  of  the  salaries  of  the  jiidyes  of  the  sii])remi'  c 
nut  believe  it;  the  most  thinkini;  men  dreaded  il. 


lUll.     The  people  would 
Tliev  said  :  '  With  an 


executive  authority  in  a  jiovernor  possessed  of  an  alisoluie  lu'iralive  on  all 
the  acts  of  the  legislature,  and  with  judjjes  dependenl  only  on  the  Crown 

lat  iiroteeliiiii  have  we?     We 


for  salaries  as  well  as  their  eoinmissions 


iiiav  as  wel 


iholish  all  limilalions  and  rcsii;n  our  lives  and  liberties  at  once 


III  Ihe  will  of  a  ))riine  minister  at  St.  .lames' 


The  disiiatches  at  lenj'th 


lived,  and  expectation  was  rai.sed  to  its  liijjhest  pitch  of  e.xnltatioi 


iiid 


triumph  on  one  side,  and  of  jirief.  terror,  dei;radalioii.  and  despondency 


HI  Hie  oilier. 


he  leLTislalnre  asseni 


ble 


11 


)<•  i_'overiior  c<immuiiic 


aled 


to  llie  two  Houses  His  Majesly's  <'omniaiuls. 

"  It  happened  that  I  was  invited  to  dine  tliat  day  with  Samuel  Wiulhrop, 
ail  exci'lleiil  character  and  a  predecessor  in  the  respectable  ollicc  you  now 
hold  in  the  supreme  court.  Arriveil  at  his  house  in  New  Itoslon,  I  round 
il  full  of  counselors  ami  representatives  and  cleriiy.  .  .  .  All  expressed 
tlieir  ileteslation  and  horrorof  the  insidious  iiiiiiislerial  plot,  but  all  au'reed 
llial  it  was  irremeiliable.  There  was  no  means  or  iiKxh^  of  opposinj;  or 
resisliiiL,'  il. 

'■  Indiirnation  and  despair,  too,  boiled  in  my  breast  as  ardently  as  in 
any  of  them.  IhoiiLrh  as  the  comiiaiiy  were  so  much  superior  to  me  in  age 


'  C'lialniers,     Inlroduetion     ti 


tie 


Hisloiy  of  tlie  Revolt  ot  the  t'olonics, 
book  vli,  (!h.  xi. 


'  Ihld.,  tiook  vli,  ell.  xl. 
»  Ibid.,  book  vii,  eh.  xi. 


GM 


STATE    IMPEACHMENT   TUtAI.S. 


[Al.,.. 


unci  slation  I  liiid  iml  said  aiiytliiuf,'  ;  but  Dr.  Winthrop,  the  ])riifessor  then 
of  the  comi.il,  nlisi'iviiii;  my  silence  and  perhaps  my  counter.atu'e,  said: 
'  Mr.  .Vdams.  wliat  is  your  opinion?  Can  you  think  of  any  way  of  escaping' 
tliis  snare  ?  '  .My  answer  was,  '  Xo,  sir  ;  I  am  as  mueli  at  a  loss  as  any  of 
the  e:)Mipany.  I  aj,'ree  with  all  the  gentlemen  that  petitions  and  reiiKin- 
stranees  to  Kini;  or  rarliament  will  be  inc  rtectual.  Nothing  but  fon'e  will 
"veeed,  but  I  would  try  one  project  before  I  had  recourse  to  the  last 
reason  and  litne.ss  of  things.'  The  coinpany  cried  out  almost  or  quite 
together,  '  ^Vhat  proi(,'ct  is  that?  What  would  you  do?'  Answer,  'I 
would  impeach  the  judges.'  'Impeach  the  jiulges !  How?  Where? 
Who  can  ini[)each  them  ? '  Answer,  '  The  house  of  representatives.' 
'The  house  of  repres(>ntatives  I  IJefore  whom?  ]iefore  the  House  of 
Lords  in  Kngland  ? '  .Vnswcr,  •  No,  surely  ;  you  might  as  well  impeach 
them  before  Lord  North  alone."  'Where  then?'  Answer,  ■  Before  the 
governor  and  council.'  '  Is  there  any  prece<lent  for  that  ?  '  .Vnswer.  '  If 
there  is  not,  it  is  now  high  tin.'^  that  a  precedent  should  be  s.'l.'  'Tlie 
governor  and  council  will  not  receive  the  imi)eacliment.'  Answei-,  '  I 
know  that  very  well,  but  the  record  of  it  '.ill  stai-!  upon  the  jowrni'N, 
be  published  in  |)amphlets  and  ni'ws|)a]iers,  and  perhaps  make  the  juiIljis 
repent  of  their  salaries  and  decline  then)  ;  jx'rhaps  ?nake  it  too  trouliU- 
some  to  hold  them.'  '  What  right  had  we  to  impeach  anybody  ?  '  Answer, 
'Our  house  of  representatives  have  the  same  right  to  impeach  as  llie 
House  of  Commons  has  in  Kngland,  and  our  governor  and  coinicil  have 
the  s.ame  right  and  duty  to  receiver  and  hear  im|ieachment  as  the  Kiiitr 
and  House  of  Lords  have  in  Parliament.  If  tl.e  governor  and  council 
would  not  do  their  duly,  thai  would  not  b(^  the  fa\dt  of  the  people  ;  llie 
representatives  ought  nevertheless  do  theirs.'  Some  of  the  company  said 
that  the  idea  was  so  ni-w  to  tln'm  that  they  wished  I  would  show  them 
some  reasons  for  my  opinion  that  we  had  the  right.  1  repeated  to  them 
the  clause  of  the  charter  which  1  nlied  on,  the  constant  practice  in  Kng- 
land, and  the  necessity  of  such  a  power  and  practice  in  evi'ry  free  govern- 
ment. 

"The  cinnpai.v  dispersed  and  I  went  home.  Dr.  Cooper  and  others  were 
excellent  bands  to  spri  ail  a  rumor,  and  before  nine  o'clock  half  of  ilic 
town  and  most  of  the  members  ()f  the  general  court  had  in  their  luNids  the 
idea  of  an  impeaclnneut.  The  ne.xt  morning  early  Major  Ilawley.  nt 
Northaniplnu.  came  to  my  house  under  great  conci'rn  and  said  be  lienid 
tliat  I,  yesterday,  in  a  public  company  siigiresled  a  thought  of  impeaidiini; 
the  judges  ;  that  report  bad  got  about  and  had  excited  some  uneasiiio-. 
and  be  desiird  to  know  my  meaning.  1  invileil  him  to  my  bouse,  opened 
the  charier,  an.!  ri'ipiested  him  to  ri'ad  the  paragraphs  that  I  hail  marked. 
T  then  produced  lo  him  that  vulmne  of  Seidell's  works  which  eonlaiiis  bis 
treatise  o!  .Tudicalure  ami  Parliament.  Oilier  aulliorilies  in  law  were 
lU'oduced  lo  bim,  and  the  State  Trials  and  a  |irofiision  of  impeachments 
with  which  thai  work  abounds.-     Major  Ibavley,  who  was  one  of  tlir  best 


AI'I'.] 


MAINK, 


boi 


iiioM  in  thp  provinrc,  and  one  of  the  iiblost  lawyors  id  lipsi  spciiki'is  in 
ilir  IcLiish.tnri!,  WHS  stnicli  wi'li  surprise.  He  s;iid  :  •  I  Know  not  \vh:it  Id 
iliiril.-.     This  is,  in  m  iniiiin  'r  M  iirw  to  mr.      I  niiist  Ihmk  nf  il."  .  .  . 


•  MMior  Iliiwl 


ihv: 


(MiMsciiMilions,  idwuvs  (lrli..criilt%  iilwavs  c; 


not  slept  sonndly.     WIimI 


liis  dri'ams  alioni  ini[)eaclunent. 


1   l<now  mil.     I5ul   tliis  I  know:  lie  drove  iiwav  to  Cinili 


,'e  to  eonsiill 


.Il 


lowliridLTe,   and   aiipe: 


lo    his    eoiiscieiiee.      'i'lie    charier    was 


callecl  I'nr  ;  Selileii  and  the  state  trials  were  i|ui)ted,  'rrowliridi.'e  said  lo  Iiiiii 
wlial  1  lind  said  lielnre.  that  the  ]iower  of  inipeachnieiil  was  essential  In  ;i 
tree  i.'()verniiienl  ;  that  llie  eliarler  had  uiveii  il  to  mir  lioiise  of  i-epreseii- 
tatives  as  elearly  as  the  conslitution  in  ihe  eoinniiin  law  oi-  iiniiieinnrial 
iisaire  had  i;iven  il  to  the  House  of  Coniinons  in  l-jiLrlai 
lie  could  say,  allhoiii;li  he  laineiiled  the  oeeasiiin  of  it. 


'I'liis  w: 


all 


Major  llawlcy  returncil  full 


faili 


ipeaclinicnt  was  voted 


aconiinittee  was  aiipoinlcd  to  prepare  arlieliv 


"  1'Iie  arlieles  Were  re|)orted  to  llie   house,  discussed,  accepted,  the   in 
pcai  hiiienl  voleil  and  sent   up  in   form   lo  llie  i^overnor  and  council  ;  ri 


jei 


led,"  that  is,  never  tried,  "  of  course,  as  evervhodv  knew  liel'oridiand  that 


it  would 


bi 


Init  it  remained  mi  the  journals  of  llii^  Iionse.  w 


IS  priulcd  in 


llie    newspapers,  and    went    alirnad    into    Ihe   world.      .Viid   what    were   tlie 
conscipiences  ?     ( 'hic^f-Jiistice  Oliver  and  his  superior  court,  your  suprenie 


judicial  court,  cdmmeneed  the 

his  court  as  usual,     (iraiid  jurors  and 


;illar  circuil.      The  chief-justice  opened 
petit  jurors  refused   lo  take  their 


oatlis.  They  never  could,  as  I  helieve,  prevail  on  (ine  juror  lo  lake  the 
oath.  I  attended  at  the  har  in  two  counties,  and  I  heard  i,'raiid  jurnrs  and 
pi'lit  jurors  say  to  Cliicf-.Inst'ce  Oliver  Ut  his  f.ice,  'The  cliief-justicc  of 
Ihis  court  stands  inipcacdicd  by  the  representatives  of  the  people  of  hii;li 


rriines  and  iiiisdcmcanors  anil  of  a  conspiracv 


ij;ainst  the  charier  privi- 


lc:,'es  of  the  pen])!!'  ;  I  <'aniiot  serve  as  a  jnr<M-  or  take  the  oath.'  'I'he 
colli,  calm,  sedate  intrcpidily  with  which  these  hnni'si  freelnilders  went 
Ihniiiirh  this  liery  trial  tilled  my  eyes  and  my  lie;irl. 

••  111  oni'  word,  llir  royal  governnient  was  from  that  moment  laiil 
prostrate  in  the  dust,  and  has  never  siiu'c  revived  in  siibsiance,  thoindi  a 
(lark  sliadow  of  the  hobgoblin  liaunls  mo  lit  limes  to  tliis  dav."  " 


MAINE, 

In  the  State  of  Maine  no  iinpeachinent.s  have  been  had.  The 
annual  tdeetion  of  the  iiovernor  ami  other  State  ollieers  has  made 
it  easier  to  punish  their  iniseondiu't  by  action  at  Ihe  polls;  while 
the  provision  for  the  removal  of  civil  olllccis  liy  the  iiovcrnor  upon  an 

'J  John  Adams'  Works,   \ol.  ix,   pp.  177:1   1771,  |ip.  Si;-8H, '.It,  lilt,  117.  IIH, 

23f)-'241.    HeealM)  lIiilrhiMsoii,  MlVof  l:!t  i:!r>.   Ill',,   117,  107,   ]H2,    IH;!,  aia, 

Thomas  niitehinson,  pp.  VM;   I II  ;  ami  'iS'J  '231!,  ill. 
Colonial  Keeords,  House  .lonriial  for 


Go8 


STATE    IMI'KACIIMKNT    TU1AL^S. 


API'. 


addrppis  by  ii  simple  iimjoi'ily  of  liolli  lioiisos  of  llie  loitisldtiirL' '"  liiis 
liiH'ii  foiiinl  a  iiioro  clliciU'ioiis  incaiis  of  liiniiMi;  out  of  ollici'  nn  oli- 
noxiouH  jiulgi".      Ill   IHTid,  Woodlmry  I):ivU.  a  justioi"  of  ilic  siiiirciiio 


court,  wus  riMiioved  l)y  tlu;  govcr 


)f  Ihf   StMlc  of  Miiiiic  ii|)()ii 


address  of  botli  liotiscs  of  the  Icirishituiv.  Tlic  caiisea  assiiiiii'd  for  llu; 
voiiiovid  wci't' :  his  refusal  to  rocoifni/.o  tliu  ollicial  aiitliorily  of  a  siu'rilT 
who  had  been  didy  uppoiiiti'd,  coniiiiissioiii'd  and  (jiialilied  ;  his  deiiiid 
of  the  lawful  and  actual  validity  of  the  aiierilT's  coinniission,  which  was 


iiidcr  (he  liaiid  of  the  "rovcnior  and  llie  seal  of  the  State;   I 


iw  reiiioviil 


of   tlie   inisoner; 
di- 


fr 


il   liy  proceedinijs  not  warraiilcd   liy  hi 


,ard  of  their  custody  by  the  slii'riff 
annllier   peisoii    who  liad   been   pi'eviousli 


lis  recoitnilion  as  sheriff  of 


iful 


V   reiiioxed 


lid 


uiidertaliiiiij;  l<>  issiii-  tiie  orders  and  precepts  of  the  court  to  tiiat  otiiir 
person  for  exenitioii. 

The  jiKlii'e  answered  tlie  petition  for  his  removal,  admitting!:  that  lie 
had  refused  to  reco'inize  the  person  iiMiiied  in  (he  petition  as  sheriff, 
but 


liliiiii;^  lluit  he  did  so  because  tlie  hitter  had  not  lieen  lau  fully 


lilted,  and  the  precedin;^  sheriff  li.id  not  been  lawfully  leiiioved;   and 


deiiviii!L(   that  the 


slaliiie   had    aiitlioiity   uiidiT  the   eonstitiition  of 


the  State  to  deteniiiiie  for  aiiv  other  department  of  tl 


"rovernnieiit 


the  (|iiestioii  who  was  sherilT.  'I'he  jiidsie  was  defended  by  Henry  W. 
I'aiiie  and  Kiifus  Clioate.  The  proceedins^  was  partisan  in  its  charac- 
ter, since  the  locality  of  the  ri'inoval  of  the  former  sheriff  was  an 
oi)eii  i|uestioii;  and  .lud^e  Davis  was  reaiipointed  in)ou  Ihe  election  of 
a  governor  of  his  owm  pr)litical  faith." 

NEW   'MMi'surm 

In  li'.iii.  WoimT  iry  I.itiigd>>ii.  a  jihIlii'  of  the  Superior  Court,  was 
impeac'lw^  liy  the  New  llaiii|>#lin'e  b^mse  <>f  repieseiitalives.  The 
arliclcM  I'liar^ed  that  b<  h.ul  willfully  and  corruptly  in  various  instances 
wrrtlH'Inivi-d  in  his  olUef,  and  neirlccted  to  aUend  to  the  duties  thereof, 
%f  HH-aiiM  wlien'of  th*"  «r»mrts  had  not  Uen  hulden  at  the  limes  and 
piafes  by  law  i-Mtablishw,  and  the  a(*»iiii«:ialion  ot  jiisliee  dclayc<l,  lo 
the  frwat  iiiimrv  of  the  irood  cuizens  of  said  .Stale;  with  Hpeeilicaticurs 
of  the  t.isot'i*  when  tlif  n'spondent  failed  to  attend.  The  .Stale  seii:ili 
portt]t<MJ*^   the   trial   until    the    followiiit^  year.      Meanwhile,   IVHwdeiil 


'"  Art.  rX,  »e,-.  .-,. 

"  Till' 'Mil.v  re|i(irl  nfilii-  priieewl- 
inc?  '■  •'  111" of  tti*' juiiniHls  is  ii  luiiiipM. 
J<  I'lMl.iiinliin  the  iii'fjiiiiieiits  of  liu- 
fuu    ChiiHt"',     Hfiiry    W.    I'aiii'-,    uuil 


I''rn,M.-is  O.  .T.  Siiiilli,  (111  the  renioviil 
of  Judjii' Davis,  pp.  1-77,  wliicli  niiiv 
lie  found  ill  the  New  York  Statu  Li- 
hriiry. 


AIM.] 


MASRACIHSKTTS. 


63!) 


W;isliin;.;ton  appointoil  liiin  one  of  tlu"  tliico  coiiimissioncis  to  si'tlle 
tlic  ri'v<iliitioii;iiy  iiccoiiiits  bi'tweeii  tlie  I  iiitwl  StiiK's  iind  llic  iii- 
(liviiiiinl  States.  J.,iin^(lon  siccopti'd  tin;  iippointiiu'tit,  and  iidiiii's.scd 
:i  IclttT  to  \\\i'.  prc'rtidoiU  of  tlii'  State,  resifriiiiiu:  his  ollice  of  jiidi!i'  as 
beiiii;  ineoiiipatilili^  witii  that  of  (MJiiiiiiissioiier.  In  h\n  letter  lie 
stated  freely  the  iiiipoitaiK't;  of  the  olliee  of  the  jiid;ie  of  the  hiiihest 
court  of  the  Slate,  the  inade(|uaey  of  the  salary,  ami  the  eiieroaeh- 
nieiits  of  the  leijislatiire  upon  tlu!  judioiary  by  pat^siui;;  hills  to  annul 
their  judgments.  He  also  vindieated  liis  ollleial  conduet  as  a  judj^e, 
answered  the  charges  made  iu  tiie  articles  of  ini|)eaehuient,  an<l 
rei|nested  that  the  president  eouininuioate  the  letters  and  ]i:ipers  to 
the  two  houses  of  the  legislature.  When  these  jjapers  were  reM<l 
in  the  house  of  representatives,  they  voted  that  as  the  judge  was 
under  an  inipeaehnient  he  ought  not  to  lie  permitted  to  resign,  and  that 
he  was  guilty  of  a  contempt  in  writing  the  letter  iind  the  papers  therein 
enclosed.  A  few  days  later,  however,  they  ordered  the  managers  to 
enter  ii  nnlle prn.icx/iii  to  the  impeachment,  which  was  immediately  <lone. 
At  the  same  tinu!  they  passed  an  address  to  the  piesiileut  and  council 
reiiuesting  them  to  remove  the  judge  from  the  olliee  he  had  resigned. 


which  luUlress  th' 


I'liate  unanimously  reje 


I'Cted. 


.lereiiiiaii  Smith  was  appointed  by  the  house  one  of  the  manager 


the  inipeaehnient,  allhough  he  had  voted  against  it. 


II 


e  was  obliged  k 


iro  lo  Worcester,  Massachusetts,  to  lii.d  forms  to  assist  him  in  diawiny; 


up  the  ailieU'.- 


Since  lliat  time  no  iiii|)eachnieiits  have  been  attempted 


in  New   Hampshire,  where  judges  may  lie  removed  by  the  governor  and 
Iress  of  a  majority  of  both  houses  of  the  legislature, 


council  upon  llie  ad( 


as  has  been  done  in  live  cases. 


MASSACIIISKTTS. 

The  first  iuipeaehment  trial  in  the  State  of  Massachusetts  was  that 
of  William  (iieenleaf,  sheriff  of  Worcester  t'oiinty.  in  17."<.s.  The  arti- 
cles charged  that  the  resimndeiit  ••  halli,  illegally  aiul  unjustly,  fi'oin 
time  to  lime,  delained,  in  his  own  hands,  for  his  private  list',  iiiiblic 
monies,  when  the  Comnionweallh  had  a  right  to,  and  was  in  great  want 
of  the  sann^"  'I'hal  he  "  had  exhibited  lo  the  treasurer  of  this  Com- 
monwealth, in  order  to  lie  laid  before  the  House  of  Hei)rescntatives, 
falsi  and  dishonest  accounts  of  monies,  which  he,  as  Sheriff,  aforesaid, 
hud  collecteil  iu  )iiivinciit  of  ]niblic  taxes."     'I'hal  he  "  had,  from  to  time, 

>- liiiti'hellor.  Ni'w  liamiisliiie  Stale      riiUiK'r,    p.    lOH ;    Life    ot    Jeremiah 
Papers,    vol.    xxl,   )ip     sjosl.''. ;    vol.       Smith,  j(.  38. 
xxii,    pi>.    719-75(1;  Life  of  Onvornor 


640 


STATIC    IMIMCACIIMKNT    TKIALS. 


[AIT, 


and  for  the  space  of  more  tlum  two  years  togi.'tlioi-,  illef^'illy  dolaiiicil  in 
his  own  hiiiuls,  and  for  his  own  private  use,  certain  monies  beloMuiiis; 
to  the  !i foresaid  inhabitants  of  the  town  of  Petirshani,  for  which  he 
never  aocDunleil  to  iIumii."  That  on  a  certain  day  ''  he  did  ))rocMrc  from 
the  treasury  of  tlie  Coniiiionwealth,  an  execution  for  money,  whieli 
money  lie  jiad  tlicn  ali'eady  recc'ved  on  a  former  execution."  'I'hat  iui 
"iiad  falsi'ly  returned  to  tiie  Treasurer,  as  ui'.satislicd,  a  ei'rtain  execu- 
tion which  in'  liad  iu  ]Kii't  collected."  That  on  a  day  Uiiuied  he  did 
'•  unjustly  procure  a  warrant  of  distress  to  lie  served  lUi  the  iuhahitauts 
of  l''ti'rsliaiu  aforesaid  for  a  larue  sum  of  money,  which  he  then  well 
knew  llicy  had  loiiil  licl'ore  [i.aid." 

The  i-cspondeiit  denuirred  specially  to  each  of  the  articles,  and  joined 
to  these  deunn'rers  a  plea  of  not  <iuilty.  The  demurrers  and  pleas 
were  tried  tojrclher.  At  the  couclusiou  of  the  testimony  and  arn;unient9 
the  question  was  put  irenerally  to  each  memlier  of  the  court:  "  Is  Wil- 
liaift  (ireenlcaf,  sheriff  of  the  Conuty  of  Worcester,  jiuilty  of  miscoii- 
iluct  and  maladministration  in  that  olllcc,  char<j:ed  u])on  him  liy  the 
impeachment  of  the  House  of  Representatives,  or  not  guilty?  "  IJe  wag 
])ronounced  guilty  hj'  a  vote  of  twenty  to  three,  and  sentenced  to  removal 
from  olliee. 

In  IT'.^I,  X.  Hunt  of  \\'atertown,  a  justice  of  the  peace  for  the 
county  of  Middlesex,  was  imi)eached  upon  three  chai'ges  :  that  he  had 
falsely  entered  upon  his  records  the  appearance  of  two  iihiintifts  who 
did  not  appear,  and  the  default  of  a  defendant  who  had  appeared.  The 
respiiudeul  |ileaded  not  guilty,  hut  was  convicted  hy  a  vole  of  twenty 
(o  seven,  and  sentenced  to  suspeusiiui  from  olliee  for  oni^  year. 

The  next  imiieachmeiit  was  of  ,lohn  \'iiial,  one  of  the  justices  of  the 
peace  forthe  county  of  SiilTolk  in  l.Sno.  The  articles  charged  geu"i-ally 
that  it  appeared  iiy  the  records  of  the  Suprem>  .judicial  Court,  certified 
copies  of  which  had  been  laid  by  tin'  attoiney-general  before  the 
liousc,  that  the  respondent  !iad  1/eeii  "convicted  of  extortions,  bribery 
and  <'orruplion  in  his  otilce,  afores.iid,  whereby  it  is  manifest  that  IIk! 
said  .lohn  \'iual,  Ksq.,  a  justice  of  the  peace,  as  aforesaid,  is  guilty  "f 
gross  misconduct  and  inal-administration  in  that  olllce."  The  separate 
articles  then  followed,  setting  forth  with  precision  specilic  charges  of 
collecting  an  extortionate  fee  for  taking  l)ail,  and  of  ri'ceiving  bribes 
for  voting  to  grant  licenses  tr,  retail  si)irituoiis  li(|Uors.  The  respondent 
pleaded  not  guilty,  but  "  consented  to  allow  the  record  of  the  Sui)reiiie 
Judicial  Court  as  conclnsive  evidence  against  him  in  siiiiport  of  the  arti- 


cles contained  in  tiie  iinpeachmcnt. 


11 


e  was  unanimously  proiioiiuccit 


guilty  and  sentenced  to  removal  from  olliee  and  a  perpetual  disqualili- 


W 


;^ 


cation. 


ATI 


•] 


MASSACIIfSKTTS. 


0-11 


)f  tlio 
:.r;iUy 
rli  (it'll 
tlie 
riliiM-y 
i:it  llio 
illy  of 
)!U'iite 

■LTl'S   (if 

lirilu's 
jiuU'iit 
pioiiii' 
10  urti- 
iiincod 

llKllili- 


Tlic  next  was  in  18(17,  the  iinpi'achinent  of  Moses  Coiioliiiid,  oiu'  of 
the  justiees  of  the  peace  for  the  county  of  Lincoln.  The  iiilichs 
cliMrged  that  ho  iiad  l)rou<iht  suit  and  entered  judiiiiient  in  his  own  court 
for  81:i.l'l  dania^'es  and  8.').1')  costs  upon  a  promissory  note  owned  liy 
liiin,  in  tlie  naiue  of  a  fictitious  endorsee.  Tiiat  lie  iiad  issued  two 
Hiits  returnable  before  himself  on  a  certain  day  and  hour,  aud  defaultiMJ 
tiie  defendant  before  the  hour  ininied  in  the  writs,  "  which  default,  al- 
tlioiitrh  the  defcnilant  api)eared  in  due  season,  lie  refused  to  taiic  olV, 
aud  afterwards  issuetl  execution  upon  these  jiidiiineuts  "  ;  and  liiudlv 
that  he  luul  coi'rui)tly  taken  a  brilie  of  81. .')(.)  "  to  bias  his  opinion  "  in 
ail  action  then  jicudinir  liefore  liiui. 

The  respondent  pi'.adcd  spi"ially  to  the  first  article  that  the  suit  Iiad 
liecu  lirouiiht  in  his '.'Oiirt  without  his  kuowledjie,  by  an  altoiuey  to  wIkjiu 
he  had  ij;ivi'ii  the  lute  for  collection  and  to  tlii^  other  articles  a  ifcneral 
pUa  of  not  fiuilty .  lie  was  ac(|uiited  by  a  vote  of  twenty-live  not 
'juilly  to  seven  finilty  on  the  first  and  third  articles,  and  a  uiianiiiioiis 
vote  on  the  secoiM  article." 

In  1H21,  James  I'rcscolt,  a  judiro  of  probate  for  the  county  of 
Middlesex,  w.as  iinpeached  and  tried  before  the  senate  of  Massachusetts. 
The  articles  charfied  him  with  extortion  in  the  collection  of  exorbitant 
fees  in  excess  of  the  amount  authorized  by  statute.  They  were  fifteen 
ill  all ;  but  he  was  aciiuitted  on  all  but  two;  the  third,  on  which  he  was 
roiivieted  on  a  vote  of  sixteen  to  nine,  and  the  twelfth,  on  which  the  vote 
a<>ain8t  him  was  fifteen  to  six. 

The  third  cliarired  that  he  did  willfully  and  corruptly  deinand  and 
receive  ijfivatcr  fees  than  were  by  law  allowed,  to  the  amount  of  i?o'.Mi-, 
for  issuiiinr  ;i  warrant  to  ajipraise  an  esta.fe.  rcceiviiiii  an  inveiitoi'V  and 
eiiteri  a  decree  irraiitinii  a  comiuissioii  of  insolvency  n|)on  the  same 
isti.te.  The  twelfth  article  charfied  that  upon  the  iireseiitnient  of  an 
ac'  luiit  of  the  guardianship  of  a  person  uan  roitipas  mciili.i,  he  over- 
''■  .d  a  iversation  lietwecii  the  guardian  and  an  overseer  of  the  poor 
.  he  ,.pwn  concerniuii  the  wanl's  estate;  and  that  thereupon  ho 
olVcred  his  I'.dvice  eiuieernin<i  the  subject  of  the  conversation,  and  .'ifler 
Ihe  overseiir  had  I'efused  to  pay  a  counsel  fee  of  S'l.OO  for  the  ailviee, 
piocu'"  il  the  same  from  the  jiuardiaii,  under  the  promise  that  he  would 
allow  lie  same  to  him  on  his  account,  which  he  did  by  insertinij;  it  by 
interlineation,  telliiw  the  jjriiardian  that  the  overseer  need  know  nothinir 


about  it. 

The   articles    upon  which    he  was    acipiitted    relateil    p 


illv    t. 


1' These  four  trials  nre   lirielly  reporleil  in  the  nppeiiilix  Id  I'resentl's  Iin- 
l"aihaienl  Trial,  infra,  note  1-1. 


('.4: 


STATK    IMI'KACHMENT   TRIALS. 


[ai>i>. 


clinrsiep  for  oouiist'l  fees  for  ailvioe  and  other  Hervioes  poncerning  estates 
wliieli  were  ailministered  in  his  otiice.  One  of  the  managers  for  the 
iioLiso  of  representatives  was  Lemuel  Shaw,  afterwards  the  celelirated 
ciiief-jiistiee  of  iSIassachiisetts.  Among  tiie  respondent's  counsel  were 
Sanniei  Itoar  and  Daniel  Webster.  The  trial  is  an  excellent  illnstra- 
tion  of  tlie  manner  in  which  Webster  was  accustomed  to  browbeat  a 
court.  The  respondent  was  sentenced  to  removal  from  odice  witiioiit 
disi|iiaiilication.'* 

Ill  I'SJl'i,  Samuel  Blagge,  a  justice  of  llie  peace,  was  iinpeaclied  and 
tried  before  tlie  Massachusetts  senate.  The  articles  charged  that  lie 
li.i<l  made  false  eertilieates  that  negroes  and  Indians  had  appeared  be- 
fore hi;n.  and  de('lared  that  they  were  free  and  resided  in  free  Slates, 
and  that  depositions  as  to  such  facts  had  been  taken  before  him  in 
other  cases.      lie  i)leaded  not  guilty  to  the  charges,  and  was  acciuitted." 

The  following  proceedings  for  removal  have  taken  place  before  the 
Massachuselts  legislature':  In  IHO:!,  Theophilus  Ibadbiiry  was  re- 
moved from  tii(^  bench  of  the  supreme  court,  because  he  had  become 
incapacitated  by  palsy.  In  the  same  year  Paul  I).  Sargent  ami 
William  N'inal,  judges  of  the  court  of  conimon  pleas  in  Hancock 
County,  were  also  removed.  They  had  been  convicled  before  the 
su|iremi>  court  of  the  crime  of  willful  extortion  in  their  otiice.  The 
oidv  evidence  was  a  certilicate  of  their  conviction  from  the  solicilor  of 
the  Couunonwealth.  .lolui  (^uincy  Adams,  who  was  then  a  member  of 
the  senate,  entered  on  Iho  jouriuil  his  ])rotest  against  this  ]n'ocee<ling, 
upon  the  grounds  :  that  judicial  otilcers  could  (udy  be  removed  fur  otlieiid 
inisdi^nieanors  ;  that  no  judicial  ollleer  r,hould  be  removed  from  oilici;  by 
the  I'lode  of  an  address  of  the  two  houses  on  account  of  offenses 
for  the  trial  of  which  the  ci  'ution  has  expressly  provided  the  mode 
of  iuipeachment.  be<-ause  he  considered  the  independence  of  the  judi- 
ciary as  materially  affected  by  the  mode  of  procedme,  which  in  I'lTect 
must  make  the  tenure  of  all  judicial  otiicers  dependent  upon  the  verdict 


o  Heporl  of  Ilic  'I'rial  liy  liii|iiNieli- 
inent  of  James  I'resi'oll,  Esi|..  ,1iiili;e 
of  the  Prulitile  of  Wills,  Ac,  for  tlii' 
("iiiUitv  iif  Xlidillescx,  for  inis.>iTiiln(( 
niiil  iMiil;i(lniirilslrMlinn  in  •iIIIim'.  Iiefiire 
I'll'  Hi'iiale  i>(  M  .-<,'irliiisetts,  in  the 
yi-iir  IH"21,  i\ii  li  iin  Appemlix  i-«iilaiii- 
UiK  nn  iieiimut  of  forni«'r  liM)ii>(nh- 
menls  In  thi'  same  Stale     By  (lelaviis 


Ihe  olll.  e  uf  II D.'iily  Ailvi-rtl-^(  r." 

IsJI  ;  p|i.  225. 

'"  A  p  i.nplili  '  ■■enlainiiiK  llin  pleml- 
liij^s  ami  Ihe  mil's  of  trial  liefm  ■  lln' 
Seniiie.  may  lie  found  in  llio  liliiaiy 
ivl  111.'  Hiir  .\s"i"'iatiiin  of  ||ie  ell>  ef 
N'l'W  Villi)  M>  liiforMiiiiliiM  as  to  llie 
result.  Is  lino  III  Uie  eomtesy  of  Mr. 
Isiuii'  II.  Kil(»Ptl,  Pepiitv  Seepetniy  "f 


IMekeririj;  and  WilUmn  Howard  Onr-      the  CJoinmonwoulili  of  MiissiK'hiisell- 
dlner  of  th.'  Suffolk  Itar.    Vnlillshed  at 


A  :■!•.] 


MASSACHrSKTTO. 


643 


(if  11  jiirv  in  any  ono  connty  of  tlii'  Conniiunwi'siltli ;  iinil  tliMt  the  ilcri- 
sion  of  tilt'  (Sonato  oiiirlit  not  to  have  liccn  taken  witliout  pivinj;  the  ac- 
cused an  oppoi'tuiiity  to  lie  lieaid  in  llicir  own  defense."' 

In  I'S.Vl,  Kdward  (ireely  Loiin;;,  jndixe  of  inoliate,  as  a  United  States 
comniissioner  had  incurred  the  hostility  of  the  aliolitionists  hy  ills  ac- 
tion in  enforcinji  the  Kujiitive  Slave  law  in  the  case  of  Anthony  Hums. 
An  address  was  tla^reupon  i)assed  in  18;'),")  by  the  leirislatnre  re(nieslin<; 
his  removal,  (ioveruor  (lardner  refused  to  remove  him.  Snhseciucntly, 
after  the  election  of  ( ioveruor  IJanks,  anew  address  for  his  removal  was 
passed,  and  (lovernor  15anks  removed  him  in  I808,  No  <ironuds  for 
the  removal  were  slated  in  the  address.  Tiie  jietiliou  to  tlie  le;j;islatin'e 
was  ])roseeuted  by  Wendell  riiillips  from  the  liar,  and  John  Andiew 
took  cliai'i^e  of  tlu-  pniceedinirs  in  tlie  house.  Richard  II.  Dana,  -Ir., 
who  hail  been  liurns'  eounsej,  opposed  the  removal.'" 

In  1>I77,  Abraham  .lackson  and  another  justice  of  tlie  peace  were  re- 
moved liy  the  irovernor  and  eouucii  upon  the  address  of  the  lefiislatiire. 
In  one  ease  upoTi  a  eonviclion  of  perjury;  and  iji  the  other  vv  !ie.i  the 
party  was  a  fuiiilive  from  justice  after  indictment. 

In  l^MI  an  a|)plication  was  made  to  the  legislature  for  tlie  removal 
of  ,)osepli  .M.  Day,  judiie  of  probati'  and  insolvency  for  the  county  of 
r.ariistnlile,  upon  tlie  sirounds  tliat  he  had  acted  as  counsel  for  an  ex- 
I'ciitiii- appointed  within  his  jurisdiction,  in  a  suit  bronuht  aiJiaiusl  the 
latliM'  in  his  representative  capacity;  that  lie  had  chariied  illefial  fees; 
that  he  h  ;d  made  a  wronufnl  decision  in  an  insolvent  proceeding  when 
lie  had  bi'cn  counsel  for  the  insoheni  in  another  matter;  tliat  lie  iiad 
acted  as  counsel  for  other  jKirties  who  had  cases  pending  in  his  court  ; 
tliat  he  had  been  iiuilty  of  improper  condiicl  and  liearinu  towards 
jiarties  in  liis  court  ;  and  tliat  he  was  accused  of  havini;  been  intoxicate<l 
and  tliiis  incapable  to  do  his  work.  His  counsel  claimed  thai  he  (H>uld 
not  be  removed  for  impi-achabie  olYenses.  lie  resigned  pending;  the 
proceedinirs,  which  then  wvMe  dropped." 


'"  Diur.v  of  .bilm  t^hidu  y  .V^Ialll>^,  xol. 

1, 11.  ann. 

"  \Vi  nilell  I'liillips'  «|ieeeh  was  re- 
(iMliliHlie  I  III  his  Speeehch  and  Lec- 
nires.  1  I  KiMies,  p.  154,  ns  woll  as  hi 
IMniiplil'  t  form.  Dana's  w;ik  reimti- 
IIbIio.I  III  a  |iaiii|  lijei,  Ddstoii.  IH,")."),  pp. 
■Js.     See  C.  V.  Adams,  Life  of  Diina, 

vol.  i.  pp.  ;tu  :u7. 

"  .\r(,'iiiiiiviiK  oi"  (!()iiiisi'l  in  tli" 
Matter  of  .Inscph  U.  Johnson  and 
others,   Polilloiiers   (or  tho  lonioviil 


from  olTiee  of  .Toscpli  M.  Day,  .Tik1,l,'0 
of  I'roliiie  :iiiil  Iii.solveiii-.v  for  tlio 
I'nualy  of  IJarnslfiliie,  liel'ore  a  Joint 
Spe'iiil  CoMiiMitlee  of  tile  Jlassiicliu- 
seiis  Ll•;,'i^.l;ltul•e,  A.  D.  1S.>-1.  For 
I'elilioiicrs,  rieorsje  S.  ItulllWell, 
(leoi}!0  \.  Kill!,'.  I  I  Respondi'Ut 
and  R.^Mioiisi rants,  D.  W.  (looeh,  T. 
If.  Tallioi  E.  W.  linr.l.it.  Boston: 
Uaiul,  Avery  ,fe  Co.,  Priiitors  to  tho 
{"-oniiiioiiwealtli,  117  Franklin  Street, 
1881. 


t>44 


sTATi:  i.mi'KAcii.M!;nt  ti;iai.s. 


[A..,.. 


RHODE   ISLAM). 

In  178fi,  under  the  Confcdernlion,  an  iiifonniition  of  .loliii  'I'lcvi'tt 
against  Jolni  Wceileu  foi'  refusing;  to  reccivo  tlic  Slatv  ]);iiii'i'  (Miiifucy  as 
au  equivalent  to  silver  orjjtokl  in  iiaynicnl  for  na'at.  was  lnonirht  lufoiellie 
supei'ioi' conit of  jnilicalure  of  tlie  State  of  i{ii()ilc  islaml  In  |)in'.siianee 
of  an  net  of  the  tieneral  Assembly.  The  ea^e  was  clear  niuler  the 
.statute.  The  defendant's  counsel,  .lames  M.  X'aiiuiiu,  liowcver,  ari;ued 
that  the  aet  was  void  for  iei)Uiruauey  lo  tiie  eonstitulion.  "The  court 
ndjoiuiied  to  next  morning,  upon  opening  of  which.  Judge  Howell,  in  a 
lirni,  sen.silile,  and  judicious  speech,  assigned  the  reasons  wiiich  incUiced 
him  to  be  of  the  oi)iuion  that  the  information  was  not  cognizable  by  the 
court  —  declared  himself  iud('|iendent  as  a  judge  —  tiie  penal  law  to  be 
repugnant,"  according  to  another  authority  "obnoxious."''-'  "  and  un- 
constitutional, and  therefore  gave  out  as  his  opinion  tiial  llu;  court  could 
not  take  cognizance  of  the  information  I  .Indge  Devol  was  of  the  same 
opinion.  .Judge  Tillinghast  took  notice  of  the  stiiking  repM'iuancy  of 
the  act — without  trial  by  jury,  according  to  the  laws  of  the  laud  —  and 
on  that  ground  gave  his  judgn\cnt  the  same  way.  .Indge  Hazard  voted 
against  taking  cognizance.  'I'lie  chief-justice  ileclared  the  judgment 
of  the  court  without  giving  his  own  opinion."-'"  Rhode  Island  was 
then  governed  under  the  colonial  charier  and  had  adopted  no  constitu- 
tion. The  General  Asseml)ly  in  the  following  week  roiiuiicd  tlu;  innue- 
diate  attendance  of  the  judges,  "to  reiuler  their  reasons  for  adjudging 
an  act  of  t'le  (ienerai  Asseinlily  luicoustitutional  and  so  void."  The 
hearing  of  the  judges  was  postponed  until  the  October  session.  After 
three  of  them  had  been  heard,  the  house  voted  upon  the  qui'stioii 
"whether  the  Assembly  was  satisfied  with  the  reasons  given  by  tlu^ 
judges  in  support  of  their  judgment"  ;  and  determined  it  in  the  nega- 
tive. A  motion  was  then  made  to  disudss  the  judges  from  tiudrollices. 
They  were,  however,  alTorded  a  iiearing,  when  N'arnnm  api)eared  as 
their  counsel  and  argued  on  their  behalf.  The  Assembly  then  voted  to 
take  the  ojiinion  of  the  attorney-general  and  other  members  of  liie  bar, 
"  wliGlher  constitutionally  and  agreeably  to  law  tlu>  ( ienerai  Assend)ly  can 
suspend,  or  remove  from  otiice,  for  a  mere  matter  of  opinion  without  a 
previous  charge  and  statement  of  criminality,  due  process,  trial  and  con- 
viction thereon." 


"  American  Museum,  vol.  v,  p.  3;)(!. 

■20  Provi(leni'i)  (lazette,  Oct.  7,  17Ht!, 
<|UOteil  liy  Cox,  .Juilieial  I'owor  ami 
Xlticonslitiitliinal  Lenislation,  p.  24.5; 
Thayer's  Ckjustitutionul  Cases,  vol.  i, 


p.  ?;! ;  Cliaailler'.s  Criniinal  'trials,  vel. 
ii,  ]>p,  2li'.l  3'2fi,  whic-li  eontains  a  re- 
print of  tlin  art,'\niieiits  of  Varn'U]] 
taken  fj'oni  I  lie  |iaiiiplilel  palilislieil 
by  himsolt  at  rrovideuco  in  I7b7. 


A.-.-.] 


NKW    YORK. 


646 


'I'lic  attornoy-gnipral  and  tliroc  otiicr  lawycr.s  oonrnrrcd  in  tho  oiiin- 
ioii  that,  till'  jiidiics  could  not  lie  siii!^[(i'iid('d  oi'  i-cmovcd  rroiii  ollicu  "  for 
a  wv]\:  iiiatliT  of  o|iinioM  wiilioiit  a  cliai'ijc  of  criminalily."  Two  of 
lluni  I'XpiTsscd  the  o])iiiioii  tliat  a  ifirnlar  iiii|»'acliiiieiit  was  cssiMitial 
I'oi-  that  purpose.  'l"ho  li'L!:inhiliiiv  tluii  losolvcd,  by  a  very  hirf,'o  ma- 
jority. "  tliat  as  the  jiid^fcs  an;  not  cliaiiii'd  wifli  any  criminality  in  n;ii- 
dcrini;  tlio  jnds^nK'nt  upon  tlu'  information,  Trt'vett  ajiainst  Wci'dcii, 
thi'y  are  tliuicfore  iliscliarf^i'd  from  any  fiiitiu'r  ulti'ndance  upon  tliis 
Asst'ml)ly  on  that  account."  The  judiics,  wliose  terms  were  aiiuiiai,  wci'e 
not,  liowcvcr,  rc-elcclod,  tail  llic  obnoxious  law  was  sidjsciiuently  re- 
pealed.-' 

NEW   YORK. 

'I'iie  lirst  New  York  impeachment  Keenis  to  Lave  been  tiiat  of  .loiin  C. 
Mather,  a  canal  commissioner,  in  lis.').'!.  The  articles  cliarLted  that  he 
had  entered  into  a  corrupt  cond)ination  witli  his  assoeialt's  so  to  let  the 
woili  in  completing  the  Krie  (anal  enhuiicment,  the  lilack  Hiver  an<l 
(ienesee  Valley  Canals,  and  the  locks  of  the  Oswefjo  (anal,  that  "a 
larj;e  proportion  of  saiil  canal  work,  amounting  to  a  larjie  amount  of 
money,  to  wit :  six  millioiiH  of  dollars,  was  to  bo  corruptly  distributed 
iimont;'  some  of  the  members  of  the  two  iioliticul  parties  known  as  the 
whin  and  democrat  parties,  and  the  relations  and  jiersonal  favorites  of 
the  said  .lolin  V.  ^Mather  and  his  associates,"  and  that  in  pursuance  of 
this  conspiracy  he  and  his  associates  awarded  contracts  for  this  work 
"  without  having  due  regard  to  price,  the  ability  of  the  jiarties,  and  the 
security  for  the  performance  thereof,  and  did  not,  as  was  his  duty,  con- 
tract with  the  lowest  bidder  for  said  work,"  when  the  lowest  bidiler  in 
tlieir  judgment  had  the  ability  to  perform  the  contract  and  furnish  sat- 
isfactory security.  Other  articles  repeated  this  charge  willi  specifica- 
tions.    That  he  had  negligently  bought  supplies  and  materials,  some  of 


ials,  viil. 

ins  a  re- 
VaraMin 
ililishecl 

787. 


-'  Clinudler'sCrhMiaal  Trials,  vul.  il, 
jip.  'JC.'.l  :\-,().  Tlio  Case  of  Trevett 
agiiiii-l  Weodon  :  On  Iiifoniuilloii  nail 
Conii'laiMl,  for  rofusiiit;  Paper  Hills 
in  Piiyaii-nt  for  Hiitelior's  Heat  in 
JIarkel,  at  I'.ir  with  Speeie.  Tried 
liefciretlie  llono''alilc  SM|ieri<ir  l.'o\irt, 
in  tho  (louaty  ol'  Newiiorl,  Sepli'ailier 
Term,  17HC..  Also,  The  t'as(;  of  the 
.Tii(lf,'i'S<)f  said  Court,  Uel'orcMlie  lloii- 
(inilile  (ieiieral  Asseralily,  at  Provi- 
dence, Oelolier  Session,  17S('i,  nii  Cita- 
tiiin,  for  disMiissinf;  said  Complaint. 


Wliei'ein  llie  Hij^hls  ot  llie  People  to 
Trial  by  Jury,  Ae.,  arc  slated  and 
iiiainlained,  and  the  Legislative,  Judi- 
ciary nad  Executive  Powers  of  Gov- 
ernaienl  exnniined  and  dellned.  ]3y 
.fames  M.  Varnimi,  Es(|.,  Major-Geu- 
eral  of  the  Slate  of  Uliode  Island,  &c., 
Counsellor  at  Law  and  Mendior  of 
Coni,'i-ess  for  said  Slate.  Providence: 
I'rinted  liy  .Tidiii  Carter,  17H7.  pp.  (iO. 
See  also  tlio  other  authorities  cited 
aiij)rii,  note  20. 


UK) 


SlAI'l':    IMPKACllMKNT    TltlAI.S. 


Lait, 


wliicli  Wfiu  not  iit'i'di'd  I'm-  tin;  cviiiiils,  at  I'xoiliitiiiit  [ji'lcea,  witljotit, 
wiiltfU  C'ontruc'ts  ii.-f  n'luiii.il  \i\  hiw.  'I'lml  lie  liad  cxpcnilud  money  on 
wdi'k  ill  cxi'i'ss  of  lliu  siiiii  aiillioi  izi'd  by  llic  ciiiuil  hoiird.  'I'liiil  lie 
liiiil  fliaiijii'd  ii  (ihiii  of  worlv  ;ulo|ilcd  liy  tlii'  lioai'd,  lliiis  doiilpliiit;  llii; 
t'xpriisi;  of  tlu'  Stall!.  Thai  liu  had  iicjili'i'ti'd  to  iiispi'ct  the  ciiualH  tiiid 
to  i;ivi'  iiotii'L'  of  his  visitation  of  tlic  saino  an  ii((iiiriil  liy  law.  That 
lit'  hat!  coUecli'd  .SnI)I>  for  iiiileani!  and  alloi;rd  tiavilliiii;  expenses  when 
he  hail  not  travelled  those  miles  nor  expended  thai  sum  of  money. 
And  that,  ullhoii^h  dniy  notilied,  he  had  failed  tu  appear  upon  the 
hearing  of  eiaiins  before  the  l!(Kird  of  Canal  Appraisers  for  canal 
damages.  'l"he  responilent  answered  by  a  |j;eneral  ilenial.  .lolin  K. 
Porti'r,  who  was  afterwards  for  n  short  time  jiiiL^!  of  the  Court  of 
Ap|)eals,  and  who  terininated  a  brilliant  professional  career  by  his 
manaijement  of  the  prosecution  of  (initeau,  was  associated  witli  the 
nianaifers  as  coinisel.  'l"he  celebrated  .lunios  T.  llrady  and  Hufns  W. 
Teclihain.  afterwards  the  lirst  jiidij;e  of  that  name  on  the  Conrt  of 
Ajipeals,  were  ainonj:  the  respondent's  counsel.  They  moved  at  the 
opening  of  lie  case  to  (|iiasli  or  strike  out  the  lirst  live  articles,  on  the 
{ironiid  that  the  alleijjed  violations  of  statute  which  had  been  held  to 
be  nncoiistilulional  and  conseipiciilly  stated  as  impeachable  fifl'ense. 
'I'he  motion  was  denied  by  the  Court  of  Impeachment  by  votes  of 
seventeen  to  thirteen,  ei;.'litein  to  tliirleen  and  Kevenleen  to  fourteen 
jis  to  the  articles  se|)arately  ;  more  than  oiie-third  in  each  case  beini;  in 
favor  of  the  respondent,  wlio  was  liiially  acipiitted." 

In  l.s()8,  Kobert  C.  Dorn,  a  canal  commissioner,  was  impeached  and 
tried  before  the  New  York  Conrt  of  Iinpeachiiient.  The  articles 
char.eil  that  there  had  been  a  conspiracy  liy  the  contractors  for  re))airs 
of  the  canals  to  buy  up  and  obtain  possession  of  all  liids  or  proposals 
made  at  rates  reasonable  and  advantaifeons  to  the  State,  and  to  interline 
and  erase  and  otherwise  make  them  so  inf(jriiial  as  to  be  rejected,  which 
conspiracy  had  been  carried  into  effect.  That  with  the  full  knowled;4e  of 
tliis  cijiispiracy,  tiie  ri'S|)on(ieiit  had  niilawfnlly  and  corrii|>tly  voted  to 
award  till' coiitiacis  to  the  highest  bidders,  who  were  parties  tosaidcon- 


"Tlie  Trial  uf  the  Hon.  John  C. 
Mather,  one  ol'  ihn  Ciiiial  Coiniiii'ision- 
ers  of  the  Stiilo  of  New  York,  in  llio 
CourL  tor  lliij  Triiil  of  Iiiipeiiehnii'iits, 
Iiekl  at  llio  Ciipilol  in  tho  Ciivof  Al- 


AtliisSleain  Press:  1s.j3;  pp.  (1."),  wllli 
appeiulix,  |ip.  7.  This  iniiy  lio  foiiail 
in  tlie  lilirary  of  tlio  X.  Y.  City  IJar 
Assoi'iatioii.  IL  teriniiiutes  with  thu 
ucljoiiriiiiient  of  tlio  Court  on  AiiHiist 


baiiy,   romnieuelni;  WiMlnesiUiy,  July  20t,h.     The  roniaininn  proeooiUiiHS  are 

27tli,    1H53.     Kieliard    Sultoii,    Short  reported  In  tlio  Jmiraal  of  tlio  Court 

Haiiil  Writer  to  tlio  Court  of  Iiiipoaeh-  of  Iiiipeaeliiiieiit,  wliiili  is  in  the  oHlco 

nieuts,  Albany.     Van  Dyke,  I'rinter —  of  the  N.  Y.  Secretary  of  State. 


AIM'.] 


KKW    VOllK. 


647 


s|iirm'y,  aiul  to  reject  bids  which  won'  lower  tiiiil  inoic  lulviiiitiij^coiio  to 
till!  Statu.  That  he  liiitl  liiiowiii^jly  iiiiii  c(>i'iii|itly  rcji'clcil  a  liid  I'or  rc- 
|iairrt  of  a  section  of  tlie  I'lrie  (anal,  on  tcriiin  Hafc  and  aclvaiil;;jieoiia 
to  the  State,  anil  voted  to  award  llie  wuik  to  anotlicr  liiddcr  at  an  ex- 
ceptional and  excessive  price.  That  aflii-  a  contract  to  repair  a  section 
of  the  (haniplain  (anal  liad  lieen  duly  awarded  to  the  lowest  h-fful 
bidder,  he  had  moved  corriiplly  with  ihe  intent  |i>  defrand  ihe  Slate 
for  a  reconsideralion  of  the  award,  ami  nsed  hi.-,  ollicial  iiilluence  to 
piociue  ihe  award  of  the  same  conliact  to  anolher  at  nn  excessive 
and  cxorbilant  price  of  nearly  ilonble  the  amount  of  the  bid  first  ac- 
cepted. 

••'Ihat  the  said  Robert  ('.  7)nrn,  Canal  (■()lnlni^'si(me|■  and  nninln'r  of 
the  Uiiiird  of  (anal  t 'llmmi>^inm■rs  :md  CoiitraetiiiLC  lioard,  diil,  ;it  divi'i'S 
times  dnriuLr  the  years  ISr.Ci  ,'ind  ISCiT,  wi-nnLtfully,  eoirnplly,  and  uiilaw- 
fnlly.  and  with  the  intention  to  defraud  and  cheat  the  Si:ile,  let  lar;.'e  !inil 
valuable  eontraels  for  the  repairs  of  said  canals  so  under  his  eharLfe,  mid 
fur  the  fiiriiishini,'  of  malei'ials  for  the  repairs  as  aforesaid,  to  various  and 
(livers  persons  or  parlies,  at  rales  mihI  |iriecs  for  the  work  aial  repidrs  to 
lie  performed  exorbitant  and  disadvantai,'eous  to  the  Slate,  and  did  unlaw- 
fully and  corruplly  let  said  contracts  to  personal  favorites,  with  the  view 
and  inlenlion  of  shariiii,'  in  the  prolits  to  be  realizi'd  from  said  contracts, 
and  did  so  lei  and  award  siiid  conlraets  to  said  parties,  and  did  execute 
saiil  contracts  on  the  part  of  the  Slate,  without  haviiii;  advertised  mid 
1,'iveii  the  iiolice  required  by  law  to  be  ^ivcn  and  made  prior  to  Ihe  letting 
of  conlraets  for  Ihe  repair  of  said  canals.  That  by  reason  thereof  ihc 
Stiile  was  defrauded  of  a  larf;e  sum  of  money,  to  the  great  wroiii,'  a'n<l  in- 
jury of  Ihe  people  of  the  Slate  of  New  Vork,  ami  in  contempt,  of  their 
laws  and  aulliorily." 

This  article  was  quashed  as  too  iudefinito. 

That  he  had  wron;_ifnlly  and  nemliiicnily  allowed  the  canals  under  his 
charfre  to  become  out  of  repair  and  unlit  for  use  ;  li.ad  failed  to  examine 
them  as  his  olllcial  duty  rcipiired  ;  failed  to  enforce  Ihe  faithful  execu- 
tion of  contracts  for  liieir  management  and  repair;  failed  to  i)r(ilect 
and  defend  Ihe  rip;  its  and  aiterests  of  the  ]ieople,  by  a  dilisrciit  and 
assiduous  attention  to  the  i.uties  enjoined  u])on  him  by  law  and  the 
rciiulations  of  the  canid  'inii  contractiiii.;  boards;  failed  to  contract  for 
labor,  materials  and  re|)ai'>,  on  the  best  terms;  and  olherwisi!  neulected 
his  olllcial  duly.  'J'hat  he  had  wr.in.^fully  and  corruplly  allowed  private 
persons  and  jiersonal  favorites  of  himself  to  .'iiipropriato  larire  quautities 
of  public  propei'ty,  lumlier,  timber,  lo.iis,  fence-posts,  pickets  and  wood 
without  any  compensation  to  the  State,  and  allowed  men,  teams,  trans- 
portation and  machineiy,  usi.'d  and  employed  by  the  State  and  under 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


// 


// 


.* 


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PhotDgraphJc 

Sciences 

Corporation 


33  WEST  MAIN  STREET 

WEBSTgR.N.Y.  US80 

(716)  a72-4503 


Lfi 


;V 


fi4S 


STATK    IMPEACIIMPNT   TKIALS. 


[A..,.. 


]):iy  of  tlio  State,  to  Iti'  used  iiiiil  ciiiployt'tl  for  tlio  use  nnd  bencllt  of 
priviilc  i>!irti('s.  Tliiil,  he  had  wronjifully  and  corniptly  made  oontiactH 
for  work,  lanor  and  materials  witliout  pnlilic  notice  as  ro(iuircd  liy  law ; 
and  aft)  r  the  work  and  repairs  had  lieen  completed  and  tlie  materials 
furnislitd  ami  delivered  lie  had  wron^ifiilly  and  corniptly  advertised, 
that  the  work  so  <'onipK  ted  would  l)e  let  pursuant  to  law  to  the  lowest 
bidder,  and  thus  deceived  the  contracting  board  and  procured  the  con- 
tracts which  he  hail  previously  nnide  to  be  duly  and  formally  awarded. 
That  after  the  a^vaitl  of  a  contract  to  one  man  who  was  ready  and 
willing  to  cuter  into  it,  he  had  corruptly  and  wrongfully  awarded  the 
same  contract  to  another  and  permitted  the  assignment  of  the  latter 
contract  to  a  third  person,  at  an  enhanced  price.  The  accused  was 
defended  liy  William  A.  Heacli  and  Henry  Smith,  lie  was  ac(|uittMl 
on  all  these  articles  by  a  majority  vote,  the  largest  minority  against  him 
being  eight  out  of  twenty-eiLrhl.-' 

The  next  New  York  impeachment  was  that  of  (ieorge  (i.  Harnanl,  a 
justice  of  the  supreme  court  for  the  Conuty  of  New  York  in  1H71. 
The  proceedings  were  instituted  at  the  instigation  of  the  Har  Associa- 
tion of  New  York  City,  uuMnbers  of  which  acted  as  counsel  for  Mie 
Assembly  upaii  the  trial.    He  was  convicted  upon  the  following  charges : 

lie  had  assisted  the  counsel  of  James  Fiskaud  Jay  (lould  in  keep- 
ing the  control  of  the  Erie  Haihvay  Company  by  ii  number  of  illegal  ex 
parte  orders.  In  one  of  these  he  had  ordered  the  corporation  by  an 
injunction  to  close  its  books  and  not  to  transfer  certain  siiaies  of  stock 
owned  or  represented  by  the  ilefeiidants,  in  which  the  plaintilT  did  not 
have  or  claim  any  legjd  or  e(piitable  interest,  for  the  purpose  of  pre- 
venting the  defendants  from  voting  upon  the  stock  at  the  ensuing 
election.  In  another  luiil  he  had  llins  enjoined  tlii>se  defendants  and 
others  from  transferring  or  attempting  to  transfer  any  slock  of  tiie  rail- 
road stamped  with  the  name  of  Heath  tfc  Co.,  or  liaphael  iV;  Sons,  anil 
from  stamping  or  ])ermitting  to  be  stain])ed  with  such  stamp,  or  any 
other  or  similar  distinctive  stamp,  any  stock  of  the  corporation  not  al- 
ready stamped,  and  from  interfering  with  any  of  such  stock,  and  from 
removing  or  attempting  to  remove  any  of  such  stamped  stock  in  the 
custody  of  one  of  the  defendants,  or  otherwise  jjreseuted  for  transfer, 
or  which  migiit  thereafter  be  presented  for  transfer  for  the  same  purpose. 
He  had  also  appoinli'<l  a  rt'ceiver  of  so  much  of  this  stock  as  was  left 


^s  A  .Journal  of  the  Court  for  the  All>an.v :  Vim    Heinliuyscu   and   Sens' 

Trial  of  Impfiiilinieiits  in  the  Case  of  Sioam     Prliitiu);    House.      1M(!H.     pp 

Hon.  llolii'rl  ('.  Dorn,  a  Cnnul   Com-  Usl,  witli  Apprmllx,  pp.  1'2H. 
nilsslimer  of  the  State  of  Now  York. 


AIM'.] 


XKW    VOUK. 


649 


with  the  corponitioii  for  traimfer;  and  of  all  Himilar  stock  that  niiiiht 
liiTcaftpr  bo  ))rps('ntj'cl  for  transfor;  and  authorized  tlio  receiver  to  tiike 
IMissession  and  control  and  nianaiienient  of  the  stock,  iiiid  "of  nil 
moneys  paid  on  account  thereof  for  tiie  stnuipinfj  of  tiie  same,"  for  tlie 
use  and  henellt  of  the  Krie  |{ailway  Company  and  of  all  the  stockiiolderB 
l)eiielicial!y  interested  tlierein.  The  stock  eoniprehended  witiiin  tiio 
iinler,  of  wiiieli  tiie  receiver  obtained  jiossession  under  it.  was  of  the 
par  and  actual  value  of  many  millions  of  dollars,  and  the  papci's  failed 
to  sliow  that  tlie  phiintilTs  had  any  interest  in  it  or  that  it  clid  not  belong 
to  the  defendants,  or  any  other  Icffal  jirouud  for  any  of  these  onlers. 
Another  ex  parte  order  appointed  another  receiver  of  all  the  shares  of 
stock  of  the  defendant  which  had  at  any  time  been  delivered  by  any 
stockholder  to  Heath  iV  Ha])liael  or  to  tiie  Krie  Stockiiolilers'  Protec- 
tion Coiniiiittce,  and  was  endorsed  to  Heath  &  I{a|>hael.  with  a  ])ower 
of  attorney  on  the  back.  This  was  the  same  stock  of  whicli  the  jnevioiw 
receiver  liad  been  appointed.  The  former  action  liad  ])revi()iisly  lieen 
removed  to  the  Circuit  Court  of  the  I'nited  States,  and  tiie  Circuit 
Coint  had  made,  or  was  about  to  and  did  presently  thereafter  order  tiie 
foriner  receiver  to  deliver  up  the  stock  to  the  defendants. 

He  had  aided  the  same  persons  in  atteiii|)ts  to  secure  the  control  of 
the  I'liion  I'acilic  Hailroad  Company,  and  had  succeeded  in  coiiipclliii<; 
the  removal  of  the  principal  olllcc  of  that  railroad  company  out  of  the 
State  of  New  York.  He  had  made  an  ex  i);>rte  order  enjoiniiiL!;  its 
directors  from  holding  an  elfc'ion  tiien  about  to  lie  lield  pursuaiil  to 
hiw  until  tlie  rii;ht  of  the  plaintifT,  .lames  Kisk,  Jr.,  to  tiie  stock  de- 
Bcrilied  in  tlie  complaint  was  detiMiiiined.  He  had  made  an  ex  parte 
order  appointin;;  William  M.  Tweed,  Jr.,  receiver,  amoiiLrst  otiicr  thiii<^s, 
of  all  the  bonds  of  the  liiited  Slates,  and  all  the  bonds  of  llie  I'liinn 
I'acilic  Hailroad  Company,  wliieli  were  in  the  possession  oi'  iiiulcr  the 
conlrol  of  said  company,  or  of  any  ollicer  or  aiient  thereof,  or  held  in 
trust  for  it;  and  the  proceeds  of  all  such  bonds  then  in  the  jiossession 
or  control  of  the  railroad  comiiany,  which  bonds  and  proceeds  were  of 
the  value  of  many  millions  of  dollars.  He  had  SMbse(|Ueiitly,  on  an  nn- 
veritieil  written  jiaper  called  a  report,  by  the  said  Tweed  as  receiver, 
made  an  ex  ])arte  order  authorizing  and  directing  the  receiver  to  open 
the  i-ife  of  the  said  Union  I'acilie  Kailroad  Company,  either  by  picking 
the  lock  or  ciittiu<j  or  blowinfi  open  the  same  as  the  receiver  miiilit 
think  best.  He  was  acipiitted  on  the  charire  of  maiiitaiiiiii!;  jurisdiction 
of  this  suit  after  it  had  been  removed  into  the  Circuit  Court  of  the 
I'liited  States,  because  the  law  on  the  point  dki  not  appear  to  be  clearly 
settled  at  that  time. 


liaO 


STATi:    IMl'KACHMENT    TRIALS. 


[ait, 


Aiiotlier  Horics  of  clmrgos  ri'lato<l  to  tlio  Albany  iind  Susquolmnnn 
Kailroiul  Coiiipuny,  in  wliieli  tin;  opposite  parties  cluiniin<;  tiie  conti-.il  of 
tliat  raili'oail  resorted  to  arms  and  compelled  the  {governor  of  the  Slate 
to  order  out  the  militia  and  to  take  poHsession  of  the  railroad  in  order 
to  keep  the  peace.  He  had  left  the  bedside  of  his  mother,  who  was 
then  diiiitteronsly  ill  at  I'oujihkcepsie,  nud  f^oue  to  New  York  at  the 
reipiest  of  Fisk,  to  Fisk's  iiouse,  and  had  grunted  in  tlie  house  of  Fisk's 
mistress,  Josephine  Jlunslield,  an  ex  parte  order  upon  insullicienl 
grounds,  appointing  Fisk  and  Charles  Courtier  receivers  of  tliat  railroad. 
In  anotlier  order  he  had  directed  the  issue  of  a  writ  of  assistance  to  the 
tiheritTof  New  York  County  to  put  said  receivers  into  possession  of  the 
railroad,  authorized  them  to  employ  force  to  resist  any  attempt  to  oust 
them  from  possession,  and  enjoined  the  sheriff  of  Albany  County,  the 
police  commissioners  of  the  city  of  Albany  and  the  directors  of  the  rail- 
road coniiiany  from  disturbing  or  interfering  with  the  said  receivers. 
In  another,  he  had  stayed  proceedings  under  an  injunction  granted  in 
the  same  litigation  by  another  justice  of  the  Supreme  Court  in  Albany 
County,  pending  an  application  before  him  to  set  the  same  aside, 
meanwhile  directing  the  issue  of  8ai<l  writs  of  assistance,  the  execution 
of  wiiich  iiad  been  enjoined  by  the  Albany  injunction,  lie  had  made 
a  similar  order  in  regard  to  another  injunction.  IJoth  of  these  orders 
were  granted  by  him  ex  parte,  in  violation  of  a  section  of  the  New  York 
Code  of  Procedure.  In  another  ex  parte  order  he  had  appointed  a 
receiver  of  three  thousand  shares  of  the  capital  stock  of  the  same  rail- 
road which  was  the  lawful  property  of  the  defendants,  although  it  did 
not  appear  that  the  plaintilT  had  a  right  or  interest  in  any  of  said 
shares;  and  further  directed  the  issue  of  a  writ  of  assistance  to  the 
sheriff  of  the  city  and  comity  of  New  Y'ork,  commanding  him  to  i>ut 
the  receivi'r  in  possession  of  them.  He  '.ad  granted  an  order  for 
the  arrest  of  the  president,  secretary,  conns.d  and  other  directors  and 
stockholders  of  said  railroad  company,  directing  that  their  bail  should 
l)e  8"Ji>,000,  for  the  purpose  of  preventing  their  attendance  at  the 
election. 

He  had  granted  wiJhout  authority  of  law,  an  order,  out  of  favor- 
itism, to  the  attorney  and  counsel  for  the  |)laintilT,  enjoini.ig  the  Mil- 
waiikee  and  St.  Paul  Railway  Company  and  its  directors  from  buikliug, 
constructing,  purchasing  or  operating  any  railroad  or  railway  other 
than  tiie  road  or  property  described  in  mortgages  referred  to  in  the 
complaint,  and  from  removing  from  the  State  any  books,  jiajjcrs,  docu- 
ments or  property  lielonging  to  or  in  the  possession  of  certain  directors. 
The  only  security  upon  the  grant  of  said  order,  was  an  undertaking  by 


AIT.] 


NEW    YOI.K 


651 


llii"  jdaiiililT  ill  tho  sum  of  !f2.')l).  It  ilul  not  n])|)(':u'  in  (!'.  •  iripiis  liiion 
wiiii'ii  till'  onlor  WHS  f^niiili'il  tliiit  tiiu  ilufcniltiiits  or  f.linT  of  tiii'iu 
llnviiti'nfil  to  coinmil,  or  iuiil  coinmitti'il,  or  wore  alioiit  to  coiiiiiiil  any 
act  wliii'ii  could  produce  any  injury  to  tno  plainlilf,  or  in  violalion  of  Iho 
plaintiff's  rifrlitti,  or  teiuliii};  to  render  inoiTcctuul  any  jii<l};ini<nt  which 
niiiilit  lie  rendered  in  the  said  action.  No  jjart  of  the  railroad  was 
situated  in  tlie  fStato  of  New  York.  The  corporation  was  incorpor;iled 
under  the  laws  of  another  Stale,  and  its  railroad  was  more  than  eiiiht 
hundred  miles  in  length,  of  which  lielween  one  hundred  and  two  hundred 
miles  were  then  in  process  of  construction,  and  r.an  throufih  the  States 
of  Wisconsin,  Iowa  and  Minnesota.  IIo  had  also  for  the  same  purpose 
and  with  no  more  authority,  a[)pointed  a  receiver  of  the  corporaliou 
and  of  the  proijcrly  described  in  a  certain  morti^age  and  trust  deed, 
descrilied  in  said  comiilaint. 

In  the  course  of  certain  jjroceedings  supplemental  to  execution  for 
the  purpose  of  conipellini?  the  application  to  the  satisfaction  of  a 
jud|j;ment  of  certain  moneys  due  from  the  defendant  to  the  Pacific  Mail 
Steamship  Company,  in  which  another  jud^e  of  the  same  court  had  en- 
joined the  delitor  from  payment,  he  had  vacated  tho  latter  order  ex  i)artu, 
and  8i<j;ucd  the  followinj?  notice :  — 

"  Supreme  Court. 

William  W.  (Joddard,  aj^st.. Jacob  Stanwood. 

If  the  money  is  not  paid  under  my  onli^r  of  (lils  day,  I  shall  imprison 
the  parlies  charged  with  contempt,  on  Monday  morniui;,  at  the  openinf»  of 

the  court. 

GKOKOK   O.    H.MtNAKl), 

February  20,  1870.  J.  S.  C. 

To  I'acilic  Mail  Steamship  Company."' 

Ho  had  granted  an  allowance  to  counsel  in  excess  of  the  statutory 
amount. 

He  had  assisted  persons  who  desired  to  obtain  the  control  of  (he  New 
■^'ork  I'ier  anil  Warehouse  Company  by  granlini;;  without  nutliorily  an 
ex  parte  order,  before  inspectors  of  t!ie  corporate  election  bad  been  ap- 
l)ointed,  which  directed  dohn  Doe  and  Uichard  Hoe,  ins])ectors  of  election 
of  the  corporation,  to  receive  oerlain  proxies  according  to  tho  terms 
thereof;  and  after  the  inspectors  had  been  appointed,  he  had  directed 
(hem  by  name  to  make  (heir  report  of  the  election  forlhwitli,  and  re- 
turn the  vole  of  one  of  (he  holders  of  said  proxies  at  sixty  thousand 
shares  before  three  o'clock  of  tho  same  day,  appointed  a  receiver,  and  di- 
rected the  sherilT  to  arrest  find  hold  without  btiil  under  a  false  pretense 
of  contempt  of  court,  one  of  the  inspectors  of  election  for  the  purpose 


6"); 


HTATK    I.M TEACH MKNT    TUIAliS. 


[AI'I'. 


of  (•(iiiipclliii};  till-  »ai<l  iiirtpcctcir  to  roceive  and  count  the  vote  of  sixty 
thoimiiiKl  sh:iiTs  of  utock  iindor  the  said  prosy,  wliich  the  saiil  inspector 
knew  oiijjht  not  to  lie  voted,  iind  wiiicli  tlie  said  judge  subsequently  de- 
cidfil  oiiLtlit  not  to  In;  voted. 

He  had  ropeuti'dly  used  on  the  bench  language  coarse,  obscene  and 
indecent,  and  "justly  causing  those  persons  in  his  hcarinfi,  and  other 
persons,  to  believe  and  understand  that  lie,  said  (tcorfjeti.  liarnard,  in 
his  olllcial  action  as  said  justice,  acted  not  with  an  honest  intent  faith- 
fully to  discharire  the  duties  of  his  said  olllce,  and  to  use  the  process  of 
said  court  for  the  purpose  of  doin<j;  justice,  but  with  the  wronjrful  and 
corrupt  intent  to  aid  and  benelit  his  friends  and  favored  suitors  anil 
counsel."  He  was  convicted  on  the  following  specifications  under  this 
charge :  — 

In  the  month  of  October,  1871,  when  an  application  was  made  to 
him  on  the  bench  fur  the  appointment  of  a  referee,  and  the  ap|)iicant 
suggested  the  appointment  of  Gratz  Nathan  as  such  referee,  the  re- 
s|)ondent  had  said  in  substance:  "  firatz  Nathan  —  (!ratz  Nr.thai;;  I 
know  no  flratz  but  one;  that  is  (Iratz  Coleman  ;  he  is  my  (iratz,"  or. 
"he  is  my  referee"  ;  thereby  alluding  to  a  notorious  fact,  that  "saiii 
Gr.atz  Nathan  was  a  jtcrson  usually  selected  as  a  referee  by  .lustice 
C'ardozo,  and  meaning  thereby  that  he  had  a  like  favorite  iu  one.laiiii'S 
H.  C<^lenian.  When  an  application  was  made  to  him  on  the  bench  for 
the  appointment  of  Tliouias  \\ .  Clerke.  a  former  justice  of  tlat  eoiirl, 
referee,  the  respondent  hail  said  in  substance  ••  tiiat  no  man  need  olTer 
that  person's  name  to  him  as  retVrec,  that  said  person  had  lied  abmit 
him,  and  had  been  his  enemy,  and  that  he  favored  liis  friends  and  not 

his  enemies."     In  tlie  course  of  the  examination  before  him  of  the  vi 

president  of  the  Inion  I'acilie  liailroad  Company,  the  witness  testiliiil 
in  reference  to  a  remark  liy  the  judge  in  tiie  luiich-rooin  of  the  Astor 
House,  that,  "  I  have  driven  one  set  of  scoundrels  out  of  New  York, 
and  I  am  going  to  drive  fint  this  set."  The  respondent  from  his  seat 
on  the  bench  admitted  that  he  had  made  said  remark,  thereby  giving 
those  present  to  tniderstand  that  he  "used  the  process  of  his  court 
not  for  the  purpose  of  doing  justice  between  party  and  party,  but  for 
the  purpose  of  |)rosecuting  and  harassing  the  I'liion  I'acilie  Uailroail 
Company,  and  the  olUcers  thereof,  said  company  being  engaged  in  a 
litigation  witli  .lames  I'isk,  .Ir." 

When  an  application  was  made  to  him  on  the  bencli  "to  attend  an 
order  whereby  I'hilo  T.  Kuggles  had  been  ap|)ointed  referee,"  he  said  : 
"  I  shall  sign  no  order  unless  I  can  make  it  to  a  man  I  can  rely  upon. 
I  am  not  going  to  appoint  any  one,  even  by  consent,  uulesit  it  is  satis- 


AIM'.] 


NKW    VOWK. 


058 


fiiptory  to  mc.  I  did  not  appoint  tills  rcfcrco."  One  of  tiio  roiiii;?i'l  in 
tlu'  case  Htiitcd  :  "  This  gLMitU'innn  watj  not  aijpointed  liy  consent."  Tin' 
ii'spondont  then  Hsiid  in  effect:  "  I  don't  care,  1  KJiail  not  do  It;  aial  if 
yon  lion't  like  it,  you  can  put  it  in  for  tbo  999th  article  of  inipeach- 
uient." 

He  was  acquitted  on  an  article  elinr<:iiif^  the  receipt  of  bribes.  Ills 
sentence  wan  removal  and  perpetmd  disqualilicalion  from  olllce."* 

In  18r,C),  George  W.  Smith,  county  judge  of  Oneida  County,  was 
remov<'il  from  olllce  on  charges  iireseiited  to  the  senate.  The  charges 
on  which  ■■  was  removed  were  :  Tluit  he  drew  for  i);iy  as  attorney  the 
necessary  \>  oors  to  secure  exemption  from  service  In  the  State  militia. 
That  ho  allov  d  his  law  jiartner  to  do  the  s;ime  and  siiared  tiie  fees  paid 
his  partner  for  such  services.  That  he  discharged  a  prisoner  held  in 
the  county  jail  on  the  charge  of  grand  larceny  ;  under  an  arrangement 
l)y  which  the  prisoner  was  thereupon  nuistered  into  the  military  service 
of  the  I'liited  States,  his  hoiinty  paid  to  the  respondent's  law-partner, 
and  the  hail-bond  kept  by  the  respondent  instead  of  being  died  in 
the  county  clerk's  ollice  or  delivered  to  the  district  attorney  as  the  law 
required.  That  he  had  been  a  party  to  a  corrupt  conspiracy  to  aid  in 
bounty-jumping  accompanied  by  brib.  ,'y  of  an  ollicer  of  the  army,  and 
that  he  had  endeavored  to  procure  the  suppression  of  the  evidence  of 
the  misconduct  of  that  odlcer."' 

In  187'J,  John  II.  McCmni,  a  justice  of  the  Superior  Court  of  the 
city  of  New  York,  was  removed  by  the  State  senate  upon  cii.irges  pre- 
sented in  a  message  from  Governor  Hoffman.  The  charges  were  :  That 
he  acte<l  as  counsel  for  the  plaintiff  in  an  action  pending  in  his  court ; 
and  that  in  the  course  of  this  action  he  illegally  granted  an  e.x  parte 
order,  appointing  an  insolvent,  without  requiring  security,  receiver  of 
funds  to  the  amount  of  $4,000;  vacated  an  order  of  another  judge  of 


'-*  ProoeedluRs  iu  the  Court  of  Im- 
peaeliinent  in  llie  Mailer  of  tlio  Ini- 
penchinent  of  Oenr^o  E.  HnnianI,  a 
.luBlieo  of  the  Supreme  Court  of  tho 
State  of  Now  York.  Alliatiy:  Weed, 
Par.sons  &  Company,  Printers.  1874. 
3  volumes,  pp.  2203,  nnil  In<lex,  pp. 
XV.  See  nl«o  CliarKes  of  tlie  Uiir  As- 
sociation of  New  Yorli  ajjalnst  Hon. 
fleorne  H.  liarniird  and  Hon.  Alliert 
Cardozo,  Justloe.i  of  tlio  Supremo 
Court,  and  Testimony  llionuu<ler 
taken  before  tlio  Judiciary  Oimniltteo 


of  the  Assembly  of  tho  State  of  New 
York,  1872.  New  York  :  Joha  Pollio- 
nius.  Printer,  102  Nnssau  Street.  1872. 
3  voliinies,  pp.  1188,  and  a  separate 
vobiiMo  eontoluinn  Iude.\,  pji.  88.  Soo 
suiirit.  §  O.'l,  nolo  2ri. 

25  .loiinial  of  tlie  PronoodinRs  of  the 
Senate  in  the  Matter  of  Oeorno  W. 
Smith,  .JudKO  of  Oneida  Cmiiity,  In 
relation  to  eharfjes  snlindtted  to  tho 
Senati>  by  tho  Governor.  Albany: 
Van  lioiilhiiyson  A  Sons,  Printers, 
18G0 ;  pp.  580. 


Gr.4 


STATK    IMI'KAt'IlMKNT   T1!IA1,S. 


[AIM., 


till'  siiino  poiirt  wliioli  i-tijoiiu'd  n  s:ilf,  and  jinintpil  otlior  cinlcrs  tlio  ic- 
Hiilt  of  wliicli  wiiH  lo  deprive  tlie  luirtii's  of  property  to  iiii  miiioiiiiI  in 
oxpi'ss  of  8"-'(l",(>0(i.  That  he  conspired  witii  iiis  brother-in-isnv  to  c-n!d)li> 
ttie  liitter  to  make  unhnvful  profits  oiil  of  the  ))roper1y  of  parties  to  an 
action  pending  liefore  liini,  ami  in  piirsnanee  of  sncli  conspiraey  ap- 
pointed liis  Ijrofher-in-law  receiver  of  certain  co-partnersliip  properly, 
alllioni;h  no  application  for  a  receivership  iiad  lieen  made,  without  re- 
(piirinij;  jiroper  security,  although  he  Icnew  tlie  receiver  "  to  l)e  a  man 
williont  i)ecuniary  responsibility  and  nnlit  for  such  trust  and  dependent 
ujion  liim  for  support,"  and  that  he  ilU-iially  and  without  jurisdiction 
ordered  the  receiver  to  pay  fees  out  of  the  funds  iu  his  custody,  to  the 
counsel  for  plaintilT,  and  otlu'rs,  which  the  receiver  did  in  pursuance  of 
said  orders.  That  he  ilK'gally  appointed  his  own  aj^ent  and  lirother-iii- 
law  to  collect  tlie  money  due  from  boarders  at  a  boarding-liouse  which 
was  maintained  by  liis  tenant,  a  jjarty  to  the  action.  That  in  a  case  in 
whicii  none  of  the  parties  wished  a  receiversiiip,  he  appointed,  without 
security,  an  improi)er  jjcrson  receiver  of  a  fund  of  812,000  owned  by 
<lefen(lants,  without  any  motion  for  the  order ;  anil  that  when  the  action 
had  been  discontinued  and  tlie  receivership  vacated  by  the  consent  of 
all  the  parties,  he  had  buiiimarily  appointed  another  receiver  of  the  same 
money  in  the  same  action  and  directed  the  payment  of  the  same  to  the 
latter  for  the  purpose  of  enabling  these  receivers  and  their  counsel  lo 
secure  fees  out  of  tlie  defendant's  property.  That  he  illegally  ap- 
pointed another  receiver  of  the  sum  of  S1G,000  in  gold  coin  of  the 
United  Htiites  ;  ordereil  the  defendants  to  an  action  to  pay  that  amount  to 
the  receiver,  and  liy  threats  of  illegal  im|)risonment  compelled  payment 
of  the  same.  That  lie  illegally  and  corruptly  granted  an  order  of  arrest, 
and  held  the  defendant  in  bail  in  the  sum  of  810,000,  although  the 
papers  showed  no  cause  for  the  arrest.  And  that  in  another  ca.se  lie 
illegally  appointed  a  referee  and  a  receiver  of  his  own  motion  for  llie 
purp(we  of  enabling,  them  to  oVitain  illegal  profits  from  n  fund  which 
was  the  subject  of  litigation  before  him.'-"' 


*>  ProcoodliiRB  In  thi>  Seiiato  on  the 
Invostifiiilloii  of  till'  clijirKi's  |)nferreil 
ii(;iiitisl  .ToliTi  It.  Mi'Cunn,  a  .Iiislico  of 
the  Sii[)erior  Cunrl  of  tlie  City  of  \ew 
York,  in  piirRuniice  of  ii  nii'sH;iKe  fmtn 
his  excellency  the  Ooveriior,  traim- 
mitliiit?  the  eliniRes  and  rocoinnienil- 
Ing  his  reniDval.  Allinny:  Weed, 
Parsons  and  roiiiimny,  rrinters,  1S74  ; 
pp.  C17.    See  also  Charges  of  the  Bar 


Association  of  New  Yorli  against  Hon. 
.lolin  H.  l[iCiiiin,  a  .Iiistico  of  tlie 
Supremo  Court  of  the  City  of  New 
York,  and  Tostliiiony  thereuniler 
taken  liefore  llie  .luilielaiy  Coniniilleo 
iif  tlio  .\'<senilily  of  .!io  State  of  Now 
York,  tH7'2.  New  York  :  John  Polhe- 
imis.  Printer,  102  Nassau  Street,  1872; 
pp.  256. 


AIM'.] 


NKW    YOUK. 


(155 


Iti  lf<72,  flovernor  Iloffiimn  pri'scntml  to  tlic  New  York  sciiato, 
charH;os  tipiinst  Ilornce  (i.  I'riiiille,  county  jiidf!;e  and  8iiT(><tiito  of 
ClienrtU'To  (.'onnty,  and  procci'din<;8  were  taken  and  a  liearing  khI  with  a 
view  to  hist  removal.  Tlie  cliarfjea  were  :  the  corrupt  iind  un  awful  col- 
lection of  fees  unauthorized  by  law,  a  conspiracj'  witii  the  c!erk  of  the 
surrogate's  olllce,  by  which  the  clerk  collected  fees  uuauthoriz  id  by  law, 
and  the  surrofjute  kept  for  himself  the  salary  paid  by  the  county  for  the 
clerk's  services  ;  (he  appointment  of  the  same  clerk  as  (guardian  <i(l  litem 
and  payment  liy  him  as  compensation  for  his  services  as  such,  when 
the  re»poudent  knew  tiie  clerk  was  collecting;  unlawful  fees  as  previously 
charm'il ;  the  refusal  to  perform  the  duties  of  his  ollice  by  drawing  pc(i- 
tions  and  papers  for  the  proof  of  wills  and  for  (he  final  settlement  of 
accounts  ;  actiufj;  as  attorney  for  the  executor  of  an  estate  upon  which  he 
had  issued  letters  testamentary,  and  corru])tly  extorting  from  him  ex- 
cessive compensation  for  his  services ;  taking  compensation  for  using 
his  iulluenre  to  induce  an  executor  to  resign  his  (rust  in  order  that 
another  might  be  appointed  administrator  of  the  es(ate ;  taking  unlaw- 
ful  compensation  for  his  services  as  county  judge  ;  neglect  of  his  duties 
as  county  judge;  refusing  to  produce  papers  relating  to  his  odice  as 
surrogate  before  the  board  of  supervisors,  when  subpa'uaed  by  them 
to  do  so;  granting  excessive  compensation  to  counsel  in  cases  before 
him  as  surrogate  anil  especially  to  his  clerk  when  acting  as  counsel ; 
permitting  his  clerk  to  practice  before  him,  and  extorting  from  parties 
excessive  fees  for  the  services  of  said  clerk ;  neglecting  to  keep  a  book 
of  fees,  as  reipiired  by  law  ;  refusing  to  furnish  the  board  of  supervisors 
with  an  itemized  account  of  his  fees  ;  furnishing  the  board  with  a  fraud- 
ulent account  of  his  fees  which  was  not  itemized,  and  which  omitted 
fees  that  he  had  collected ;  fraudulently  persuading  (he  executor  of  an 
estate,  in  settlement  before  him,  (o  sell  him  I'nited  States  bonds  at  less 
than  their  market  value;  extorting  excessive  and  illegal  fees  in  several 
instances  specilied  ;  permitting  his  clerk  to  collect  excessive  fees  in  sev- 
eral instances  specilied  ;  appointing  his  clerk  guardian  ad  lilcm  in  a 
case  in  which  the  clerk  was  previously  employed  as  attorney  for  a  party 
with  conllicting  interest;  corruptly  adjudicating  that  a  majority  of  the 
tax-payers  of  a  town  who  represented  the  majority  of  the  taxable  prop- 
erty had  assented  to  the  bonding  of  the  town  in  aid  of  a  railroad  ; 
taking  a  counsel  fee  for  services  in  a  proceeding  which  he  knew  was  to 
be  brought  before  him  as  county  judge ;  accepting  employment  as 
counsel  in  suits  for  and  against  executors,  administrators,  guardians 
and  minors  in  several  actions  when  as  connty  judge  and  surrogate  he  had 
the  jurisdiction  over  the  accounts  of  such  parties.     The  charges  were 


eso 


STATE   I.MI'KACIIMKNT   TItlALS. 


[aI'P. 


Ilfly-foiir  in  all.  Tin;  spiiiitc  voted  tlint  the  chiu-);cM  thiit  he  liiul  nc- 
c'l'pti'il  iMiipluyiiicnt  as  iittorui-y  for  an  cxfciitor  in  ii  Huit  in  Ibu  Siipronio 
C'oiiil  wluTi'  lie  IiikI  jniisdicliiin  of  mii  cstiilc  ami  collccli'd  an  oxcis- 
Kivf  fii' ;  that  111'  IniiI  rcfuHiMl  to  produce'  liooks  iM-foio  tin-  Hoard  of 
Slip!  r\  i^ois  wlicn  ifi|m'Nlt'd  ;  tlial  he  liad  rofuHcil  to  kt'i'p  a  fee-book  an 
ri'ipiiri'd  liy  law;  tlml  In-  liaci  icfii^fd  to  finnisli  tlic  Itoard  of  Snporvis- 
oi'M  with  an  ilt'iiii/i'd  accoiinl  of  lii.-t  fci's ;  that  tlio  nnitt'nii/.t'd  aoconnt 
wldi'h  hi'  furnislu'd  the  .Snpi'i'visorsoinilti'il  IVi's  wlilcli  he  had  eollected; 
and  that  he  had  taken  connscl-fees  for  drawins:  papers  for  use  upon  ap- 
pliealioii  liefore  him  an  comity  jiid^e,  had  IxM'n  proved.  'I'he  senate, 
however,  refused  to  remove  him,  liy  a  vote  of  seventeen  to  seven." 

In  1^172  and  1H7;',,  eliar^jcs  ay;ainst  (ieor};c  M.  (.Mirtis,  jnd^e  of  the 
Marine  t'onrt  of  the  city  of  New  York,  were  heard  before  the  N'ew 
York  senate.  Tiie  eiiiir;;es  wen' :  that  he  was  a  memher  of  a  firni  which 
praetieed  law  in  his  own  eoiirt,  had  shared  the  fees  reeeived  by  it 
for  trying  caMes  before  him,  had  appointed  one  of  the  firm  referee  and 
shared  the  referee's  fees  ;  that  he  had  willfully,  corruptly  and  unlawfully 
j;ranled  a  new  trial;  that  he  had  used  grossly  improper  conduct  and 
Hcundalous  and  indecent  laii<;ua^H!  on  the  bench,  tcndin<;  to  bring  the 
udmiiiistiation  of  justice  in  his  court  into  contempt,  with  specilications 
of  siieli  laii,u;uay;e,  which  was  charged  to  have  been  in  one  case  so  vul- 
gar tlial  his  associates  in  consequence  thereof  adjourned  the  (jcncral 
Term  which  they  were  holdini;  with  him;  and  that  his  conduct  "upon 
the  bench  of  the  said  .Marine  Court,  while  actinj;  as  justice  thereof ,  has 
been  of  such  a  character  as  to  de}j;rade  the  judicial  olllce  in  tite  esteem, 
to  impair  the  respect  and  confidence,  of  Huitors,  of  the  bar,  and  of  the 
peo])le  generally,  in  the  impartiality,  purify  and  trustworthiness  of  tlie 
court."  The  senate  voted  that  the  <'harj;es  were  not  (iroven  upon  the 
principal  charges  by  u  nnijority  nearly  the  same  as  that  in  I'riudle's 
case."- 

In  1S77,  (lovcrnor  Robinson  |)resented  to  the  senate  of  New  York 


-'  rmi'eedJMfjs!  in  the  S.'riiito  on 
the  inv('sti;;iiti<)n  of  tlin  cliartjos  jiro- 
forreif  aKiiiiiHt  Itorneo  G.  I'riiuile, 
County  .ludge  aiui  SiirioKuto  of  Clio- 
nnuno  County.  In  pursuauoe  of  a 
messano  from  liis  oxeellnney  tlio 
Oovernor,  traiiRiiiiUInK  tlio  clmrjjcH 
and  ropoMimnndinji  his  removal.  Al- 
bany Weed,  Parsons  and  Company, 
Printers,  1S74.  2  volumes,  pp.  1319, 
besiUos  ludoz,  pp.  16. 


2«  Pnieeedinnw  in  the  Senate  on  the 
Investigation  of  tlie  Cliarges  preferred 
against  (leorgo  M.  Curtis,  a  Jiisllee 
of  tlie  Marine  C^iurt  of  the  eity  of  Now 
York,  in  piirsnanee  of  u  Message  from 
Ills  Excelleney  the  Oovernor,  trans- 
niittln){  tlie  Charges  ami  reeomniond- 
ing  his  Romoval.  Albany  :  Weed,  Par- 
sons it  Company,  Printers.  1874.  pp. 
748. 


AIM'.] 


NKW    .IKltSKV. 


667 


olmrjies  n$;ainst  l)c  Witt  ('.  Kllin,  Niiix-i-intciulciit  of  the  linnkin^  (Icpui't- 
iiu'iil,  of  iH'ijlini'iM'e  ill  tiie  (liscliurj-i'  of  iiiti  iliitics,  liy  fiiiliiia  to  tiiko 
iiu'iiHiiri'H  to  cloHc  certiiiii  hiiiikH  iiftoi'  hi>  liiul  iiotioe  of  llicir  iiiHulvpiicv, 
(uiil  ill  otlitT  casi's.  'I'lu'  Hciiatc  rofiiai'd  to  iciiiovt'  him  iifter  a  triiil, 
by  II  Yoto  of  10  ill  liis  favor  um\  '.'I  a^aiiiHt  him." 

In  \X'x,  (iovuruor  Koliiimon  )>rt>aciite(l  to  the  senate  of  tlie  Hume 
State  cliarHeH  aj^iiiiixt  .loliii  V.  Smylh,  HMpcriiitciKh'tit  of  tiie  iiiHiiraiice 
(Ifpartmciit.  The  eiiar^jeH  wci-f  :  the  extortion  from  inniirance  ('(nii- 
Iianies  of  exorliituiit  feeH  of  nttorncyH  and  apiiraiHerH  for  tlie  paiil 
examination  of  tlieir  iisHetH  made  under  iiin  Hiipervision.  'I'lie  nenate 
aeipiitted  liim  l)y  ii  vote  of  I'.l  in  his  favor  to  12  ugaiuHt  him." 

NEW  .IKKSKY. 


York 

on  tho 

f  I  Trod 

iisllee 

uf  Now 

from 

trans- 

iniond- 

1,  Var- 

pp. 


In  imiO,  Henry  Millrr,  a  jiiHtioe  of  the  peace,  was  impeaehed  and 
tried  hefore  tiie  lej;iBlative  eoiiiieil  of  New  .Jersey.  Tlie  articles  i-harfjed  : 
the  trial  of  two  eases  in  which  the  respondent  was  personally  interested, 
the  jiroseciitioii  and  collection  for  his  own  lienelit  hefore  another  justice 
of  the  peace  of  a  note  which  had  liceii  placed  in  his  hands  for  jiiosecii- 
tioii  and  collection  hefore  himself  for  the  henelit  of  the  true  owner 
thereof;  an  attempt  to  intimidate  a  defendant  from  ai)pealing  by 
telliiif;  him  that  if  he  intended  to  apjieal  fn.:u  the  jnd^meiit  about  to  bo 
rendered  the  respondent  wonid  render  judgment  for  ?■_*.')  or  at  least  S'.'H, 
but  if  he  wonld  not  appeal  the  judgment  would  be  for  S12..')(t  only; 
and  a  failure  to  keep  an  accurate  docket  of  the  proceedinjis  in  his  court 
and  also  altering  entries  that  had  been  made  in  tlie  docket  upon  tlic 
first  article  which  charged  the  trial  of  a  case  in  which  he  was  jiersonally 
interested.  The  respondent  was  convicted  upon  a  single  article  and 
upon  the  other  charges  was  ac(iiiitted.  lie  was  sentenced  to  dismissal 
from  his  ollice." 


-'"  Tcsliinoiiy  Inlji'ii  lipforc  tlio  Sen- 
ate Coinriiitti'e  uii  Kaiiks,  and  the  Ki'ii- 
ali'  of  tlie  Slate  of  Nei  \  orl<,  in  refer- 
eneo  ti>  cliarKes  preferred  liy  Williaiii 

.1.   llesl,  Jt -iver,  etc..   Kilwiiril  Mai- 

loll  and  .loliii  ^laeli  against  De  Wilt 
<;.  Kllis,  Sa|ieriliteiideiit  of  tlie  Haiik- 
iuii  Depiuliiieiil  of  the  Slate  of  New 
i'orli.  Also  .loiiraal  of  the  Senate. 
I'liiited  iiiiihT  tlii>  direelloii  of  the 
Clerli  of  the  Senate,  imrsuant  to  rehO- 
liitloii  of  the  Si'iinte,  passtKi  at  Sarn- 
to(?a,  Aug.  17,   1877.     Albany:  Wood, 


rar«onn  and  Ooniimny,  Printers,  187."). 
;i  volumes:  vol.  1,  ]i|>.  (iHH,  Indi'x,  p|i. 
xvii;  vol.  ii,  |)|i.  »iH!M4(IO,  Index,  pp. 
xvii;  vol  iii,  pp.  1401-2048,  Index  pp. 
xvii. 

■^'  Tho  proeoedinKS  aro  reported  in 
a  pulilie  doeuinent,  eoiitainiiiK  tho 
tostlnuony  and  arKUiuenl.-i.  of  .')2I« 
pn^es,  aeeonipnnyiii};  the  journal  of 
the  Senate  in  37  pnsjes. 

"'  ilinuti'S  of  till'  lVoein'diiit;s  of 
tho  benislative  Coiiueil  of  tho  Staieof 
Now  Jersey,  sitting  as  a  High  Giurt 


n:>H 


STATK    IMPKACIIMKXT    TKIAKS. 


[A|. 


Ill  iKi'iT,  DuiiicI  ('.  CozfiiH,  a  juHtice  of  the  i>rnce,  wan  impeached 
uiul  ti'ifil  lu'fui'it  tlic  lt'i;islutivc  council  of  tlic  Hamc  State.  The  articlcH 
clmi'i|;(Hl :  tlio  isHuc  <>f  two  Hiiminons,  the  entry  of  Judgment,  and  tlio 
iHtine  of  execution  witliout  tiie  knowledge  or  coimcnt  of  the  pluintill' 
named  therein,  although  the  execution  wan  afterwards  withdrawn;  a 
suliHei|uent  ixsue  of  a  Huinnions  a<i;ainBt  the  Haine  defen<lant  without  the 
knowle<l<ie  or  consent  of  the  pertton  named  at)  plaintilT;  the  Htalement, 
when  the  defendant  applied  to  know  who  the  plainlifT  was,  that  the  re- 
Hpondent  wi,  it  hound  to  know;  on  the  trial  day  when  the  defendant 
apinaved,  a  ('.^lay  of  an  houi,  and  when,  after  the  expiration  of  that 
time,  the  d'jfenilant  asked  if  the  respondent  were  ready  for  trial,  tiie 
reply  :  "  No,  ilaiiin  you,  I'll  frive  you  a  nonsuit."  The  respondent  was 
KCiiuitled  liy  a  majority  vote  in  his  favor.** 

In  IKKd,  Patrick  l.averty,  principal  keeper  of  the  slate  prison,  was 
impeached  liy  tlie  assemlily  and  tried  and  <'onvieted  liy  the  Senate  of 
.Jersey  and  punished  liy  removal  and  disi|nalificntioii  from  all  olllces. 
The  articles  charged  him  with  adultery  and  f.irnication  with  female  eon- 
vicls  in  his  custody.  The  respondent  answered  denyiu};  the  cliar<;es 
and  was  defi'udeil  liy  counsel. "•'' 

On  Marcii  l.'ith,  iM'.i.'i,  Patrick  W.  Connelly,  a  justice  of  the  jieace, 
was  convicted  and  sentenced  to  removal  from  ollice  liy  the  senate  of 
New  .lersey,  upon  im[)eachment  for  assaulting  a  lawyer  who  hail  ealleil 
u)ioii  him  u|ion  <il1icial  Imsiness  in  his  olllee,  and  continuing  the  assault 
upon  the  street  outside.  The  articles  of  impeachment  were  ])resented 
on  March  Ith.  They  also  charged  as  an  olTense  the  falsidc'tiou  and 
alteration  liy  the  respondent  of  the  docket  of  a  judgment  after  it  had 
been  rendered,  '^o  as  to  make  it  a  judgment  of  non-suit  inateatl  of  a 
judgment  for  the  defendant.  Tlie  respondent  was  acquitted  on  the 
latter  charsre.     Tiie  trial  liegan  on  March  11th." 


TENNSYLVANIA. 


In  Peimsylvania  in  I  7H0,  under 
son,  the  State  judge  of  admiralty, 

of  IiiipeiicliiniMit,  at  IlioCilyof  Tren- 
ton. In  tlio  .yeiir  <if  iinr  Ijjrd,  one 
lliouHiiiKl  I'inhf,  liuiidrcd  ami  tliirtj-, 
uiul  of  tlie  Indi'iii'iKli'iieeof  llie  United 
States  the  liriy-foiirlli.     1H;)0. 

'2  Jliiiules  (it  tlie  Proceoilings  of 
the  Legislative  Coimiil  of  theStiite  of 
New  Jersey,  silAIng  as  a  High  Court 
of  Itniioaelinieiit,  ut  the  City  of  Tren- 


the  Confederation,  Francis  Ilopkin- 
was  impeached  liy  the   house  of  as- 

tun,  In  tlio  year  of  our  Lord  <ino 
tliouKiind  eight  hundred  and  thirty- 
seven,  and  of  the  United  States  thii 
sixty-llrst.     I«;t7. 

»'  Senate  Journal  of  New  Jersey, 
in  IKHfi,  pp.  90,'i-959. 

**  Journal  of  the  Diet  Senate  of  llie 
Slate  of  New  Jersey,  Trent<in,  New 
Jersey,  1895,  pp.  336-340,  901-1008. 


AIM'.] 


1'KSNSyi-VANlA. 


669 


siiiilily  iinil  tried  before  the  president  niid  council.  The  nrticlcH  elinrncd 
liiiii  Willi  u  propoHiil  to  nppoiut  n  niiiii  a;!fnt  for  iinrppriMi'Uled  hIhu'ch  of 
jii'i/.es  l)i.'l(in<riM^  to  iiliHcnt  Hciinien  aiul  olliers  upon  condiliop  tlitit  tliu 
pcvHon  Dppointed  Bhouid  innke  liiin  n  present  of  u  suit  of  clotliuH ;  un''  the 
tlirciit  to  uppoiut  others  in  Ills  stesid  if  tills  condition  wiis  not  coiaplied 
witli ;  w'itli  iMsiiin^  ii  writ  for  tlie  sale  of  ii  cnrj^o  of  the  prize,  nh.  a  fulscly 
declared  thtit  it  had  iiceu  tustitlcd  tc  him,  that  the  ear^o  was  in  ^M'<'at 
daiiger  of  waste,  spoil  and  daiiia;;)',  when  tliere  lind  lieen  iu  truth  no  siicla 
testimony;  'ind  with  coiitir-'.aily  ehar}jin){  and  reeciviiijj;  excessive  I'l'cs. 
The  niii-wi'i  admitted  that  the  jud^c  had  said  to  the  marshal,  who  hud 
ajiplied  to  him  for  the  appointment  of  ISlair  JlcClenaclian,  "  thai  a 
thou<!lit  had  just  occurred  which  he  would  in  conlldcncc  mention,  re- 
i|iiesliii<;  his  opinion  thci'(>upoii,  and  declarin<;  he  would  lie  hound  liy  it. 
And  then  ohscrved  to  the  marsiial  that  he  was  aluuit  tc  throw  into  Mr. 
McClcnacliiin's  hands,  many  thousand  pounds,  by  •;iviii<;  him  the 
!i<.'cncy.  .  .  'I'hat  Mr.  iMcClenachnn  had  wroujiht  him  much  tidiihlc  in 
liis  olllce,  had  never  shown  civility  of  any  kind,  and  even  f. fleeted  the 
common  eonipliment  of  his  hat,  when  tliey  met.  That  he  heard  much 
of  Mr.  McClenachan's  politeness  and  tieiierosity  to  other  persons  and 
submitted  it,  whether  it  would  not  be  as  proper,  if  .Mr.  .MeClenaclian 
should  make  him  a  ]>resent  of  a  suit  of  cloaths,  as  well  as  to  other  |icr- 
sons  who  had  not  been  as  boiieficent  to  him  c  done  him  such  sub- 
stantial favours,  and  tinally  observed  that  this  was  a  matter  of  delicacy 
and  doidit.  To  wliieli  the  marshal  rei)lied,  that  in  common  justice  -Mr. 
.McClennchan  ou<ilit  to  make  some  acknowicd'j'iiicnt  for  so  coiisidiraMo 
a  favour  —  that  there  was  no  iiiipro])ricly  or  indelicacy  in  the  jiuiire's 
recciviu}!  such  a  present,  shoidd  it  lie  ol'lei-i'd;  the  apitointnieiit  to  an 
a<i;enoy  not  bein<;  a  judicial  act,  but  a  voluntary  favour  of  tlie  (!ourt ; 
no  more  conversation  of  any  importance  passed  at  that  time  on  the  sul)- 
ject.  Some  days  after,  the  judf;e  asked  the  marshal  whether  he  had 
ever  mentioned  aiiylliinjj  of  this  affair  to  Mr.  .MeClenaclian,  who  ivplied 
that  he  had  not  had  favorable  opportunity,  and  these  were  the  only 
times  in  which  the  matter  was  toucded  upon;  I'xccptiuii  tiiat  some  short 
time  after  the  jud<;e,  tliiiikiii<r  on  further  consideration  that  the  thin<i; 
was  improper,  declared  his  better  sentiments  to  the  marshal,  and  abso- 
lutely forbid  him  proceedinii  in  it.  Hut  told  the  marsiial  he  should  <'X- 
pect  Mr.  ^IcC'lenachaii  would  at  least  ask  the  .Judjic  for  (he  agency,  a 
ceremony  he  never  dispensed  with  —  as  he  thoii;j;lit  the  favour  worth 
asking  for,  if  worth  possessing;  and  declared  he  would  never  make  the 
favours  of  his  olllce  so  clieap  as  to  force  them  on  persons  who  would 
not    condescend    to   request   them."      The   answer   further   said   that 


660 


STATK   IMPKACHMENT  TIJIALS. 


[ait, 


McClenachan  iiogleeted  to  ask  for  the  agency  in  question,  and  in  tlio 
meanwhile  other  reasons  ocoun-ed  to  the  judge  for  not  appointing  iiiiu 
as  agent,  and  he  consequently  appointed  other  persons ;  and  that  the 
bills  of  costs  which  he  had  charged  were  in  accordance  with  the  custom 
of  his  otliee. 

James  Wilson,  afterwards  justice  of  the  Supreme  Court  of  the  United 
States,  and  who  played  an  important  part  in  the  framing  of  the  Constitu- 
tion, appeared  as  attorney  for  tlie  defendant  together  willi  Jared  1).  1  nger- 
soll.  The  council  dismissed  the  charges  for  lack  of  proof  as  regards 
the  solicitation  of  the  brilie,  and  because  they  were  of  the  opinion  tliat 
the  judge  acted  in  good  failh  as  regards  the  other  matters,  but  con- 
cluded their  decision  with  an  opinion  expressing  their  disapproval  of 
the  acceptance  of  presents  by  public  ollicers." 

In  1703,  the  house  of  re])rcseiitative8  of  that  State  impeached  and 
the  senate  tried  John  Nicholson,  the  comptroller-general.  The  articles 
charged  him  with  improper  recognition  of  the  now  loan  certilicatcs, 
which  had  been  issued  in  pursuance  of  a  previous  act  of  the  legislature 
and  had  been  subsequently  annulled  by  a  later  act;  with  presenting 
them  and  declaring  them  "  to  be  subscribable,  as  debts  due  and  owing 
by  the  State  of  Pennsylvania,  to  a  certain  loan,  opened  and  proposed, 
on  the  part  of  the  United  istates,  to  the  creditors  of  tlie  respective 
States";  with  certifying  that  they  were  redeemable;  and  in  his  reports 
concerning  the  same  so  confounding  them  with  other  valid  loans  as  to 
make  it  impossible  for  tlie  governor  to  know  that  they  were  there  in- 
cluded ;  with  purchasing  such  certificates  himself  and  then  presenting 
them  in  subscription  to  said  loans;  and  in  certain  cases,  after  he  had 
allowed  such  new  loan  certificates  to  bo  exchanged  for  certificates  of 
debts  by  tiio  United  States,  with  ajipropriating  them  to  his  own  use  and 
again  subscribing  them  to  the  loan  in  his  own  name  and  for  his  own 
benefit.  The  answer  was  a  general  plea  of  not  guilty.  The  defense 
rested  principally  on  a  claim  that  the  law  authorized  the  action  of  the 
respondent  in  recognizing  these  new  loan  certificates;  that  he  had  as 
much  right  as  any  oilier  citizen  to  purchase  and  deal  in  them;  and  that 
there  was  no  proof  of  tlie  last  charge.  The  respondent  was  ac(iuitted 
liy  a  majority  vote  in  his  favor  on  all  the  articles  but  two,  and  upon 


85  The  Pennsylvania  Stnte  Trials, 
eontainiiiK  tlio  Inipcaclimeiit  Trial  iind 
Aciiuittal  of  Fniiicis  Ilopldnsiou  and 
Jiiliu  Nii'hiilsdii,  Esqiiiros,  tin'  foniior 
being  JikIko  of  tlie  Court  of  Admiralty 


of  the  Commonwealth  of  Po'.insylvftnia. 
Vol.  i,  Viri's(|U('s  Acquirit  EuudoVlrg. 
riiiliKlclphlo.  Printed  by  Francis  liiii- 
loynt  Yorii'k'sHond.No.  IIG  Hifth  St.. 
For   Edniond    Hogon,   M.DCC.XCIV. 


unU  the  latter  the  ComptroUer-Gonoral      pp.  776. 


AIM'.] 


PENNSYLVANIA. 


661 


(hose  two  by  a  vote  of  less  than  two-thirds  aji;iuiist  him.  Peiidiii  '  the 
(iiscuHsion  liy  the  senate,  iiftei-  tiie  testimony  and  arguments  had  been 
elosed,  u  resolution  for  his  removal  by  tlie  governor  passeil  the  house. 
Immediately  upon  the  announcement  to  the  respondent  of  his  acquittal, 
he  resigned  his  odlee.  The  senate  ui)on  the  same  day  jjassed  a  resolu- 
tion concurring  with  that  of  the  house  and  addressed  to  the  governor 
for  his  removal.  The  governor  notilled  them  that  the  respondent  had 
superseded  the  removal  by  resigning  his  otlice,  and  his  resignation  had 
been  already  aeoepled.'" 

In  178H,  the  .Supreme  Court  of  Pennsylvania  punished  Kieazer 
Oswald  by  a  Hue  of  ten  pounds  and  a  month's  imprisonment  on  account 
of  his  publication  in  the  Independent  (Jazette  of  an  article  attacking 
the  conduct  (/  .'he  plaintiff  in  a  suit  insti*uted  against  him  and  insinu- 
ating prejudice  on  the  ])art  of  the  court.  A  few  weeks  after  his  dis- 
charge, Oswald  presented  a  memorial  to  the  general  assembly  of  the 
State  calling  upon  the  house  to  determine  "  whether  the  judges  did  not 
infringe  the  Constitution  in  direct  terms  in  the  sentence  they  had  pro- 
nounced, and  whether  they  had  not  made  thciselves  proper  objects  of 
impeachment."  Lewis,  one  of  tlie  leaders  of  the  house,  defended  the 
judges  in  an  elaborate  argument,  the  points  of  which  are  still  preserved. 
The  house  finally  resolved,  "That  this  house,  having,  in  a  committee 
of  the  whole,  gone  into  a  full  examination  of  the  charges  exhibited  by 
Kieazer  Oswald,  of  arbitrary  and  oppressive  jjroceedings  in  the  justices 
of  the  (Supreme  Court  against  the  said  Kieazer  Oswald,  are  of  opinion, 
that  the  charges  are  unsupported  by  the  testimony  adthu^'d,  and,  con- 
se(iuently,  that  there  is  no  just  cause  for  iiniH'iu'hing  the  said  justices."^ 

Meanwhile  the  arrogance  and  aristoeratic  tendencies  of  the  Federalist 
party  swept  it  from  power  in  the  State  of  Pennsylvania  as  well  as 
throughout  the  greater  part  of  tlie  Union.  The  Democrat;  uo  had  i)re- 
viously  been  excluded  from  judicial  as  well  as  other  ollices  in  tiie  North, 
attempted  in  many  States  as  well  as  i:i  the  I'nited  States  to  remove  Fed- 
eral judges  in  order  to  substitute  good  Democrats  in  their  place. 
Amongst  these  was  Alexander  Aildison,  president  of  the  Court  of  Com- 
mon Pleas  ill  the  Fifth  District  of  Pennsylvania,  lie  was  a  Presbyte- 
rian preacher,  wlio  had  abandoned  the  pulpit  for  the  bench,  and  was 
accustomed  in  his  charges  to  grand  juries  to  take  every  opportunity  to 
denounce  the  Democrats  and  all  who  sympathized  with  the  French  revo- 
lution.    He  had  even  gone  so  far  as  to  instruct  a  grand  jury  that  a 


M  Ibid. 


""  Ui'spiililica  V.  Oswald,  I  Dullus, 
319,  32'.),  uiiil  notes. 


6G2 


SIATK    IMPEACHMKNT    TlilALS. 


[AI'I', 


liberty  pole  was  a  nuisiinco.  Ouo  of  his  assoeiiites  wiis  John  Lucas,  u 
l'"iviichiiiau,  of  iiiilil  iiuimnTs  and  little  education.  On  one  occasion 
wlii'n  J^ucMS  oliarjii'd  tin'  jmy  after  tlie  CDnclusion  of  a  cliarfie  b^'  Addi- 
son, Addison  inalnict.'d  tlieni  '*  that  the  address  delivered  to  them  by 
tlie  said  Jolui  hucas,  otherwise  John  H.  Lucns,  iiad  nolliiup;  to  do  with 
the  question  before  tlieni,  and  that  they  oii^lit  not  to  pay  any  attention 
to  it."  Upon  another  occasion,  Addison  refused  to  allow  Lucas  to 
charge  the  j;i'aiid  jury  after  his  own  charge  which  contaiued  a  bitter  de- 
nunciation of  the  French,  and  the  Democratic  party.  Lucas  acquiesced 
at  the  time,  but  consulted  his  friends;  amonjist  others, . I udge  IJraekeu- 
ridfre,  and  i)reparcd  to  resist  upon  the  next  occasion.  He  then  prepared 
a  mild  and  temperate  ad<lress  to  the  grand  jury  in  which  he  said  amongst 
other  tilings  :  — 

"For  my  part,  I  cannot  expose  myself  so  much  as  to  forget  that  I 
stand  here  as  a  judge,  and  not  as  a  speculalist  or  historian ;  that  this 
present  time  is  at  the  ilisposal  of  the  laws,  and  not  at  that  of  my  fancy 
or  imagination,  (iod  forbid,  above  all,  that  I  should  single  out  any 
set  of  men  among  fellow-eilizens,  and  insinuate  that  they  are  a  ramifi- 
cation of  such  (lerniau  and  French  illuniinccs  and  jacobins,  and  that 
the  mean  course  of  the  last  general  election  throughout  the  L'nited 
States  evinces  that  this  ramilicatiiui  is  growing  powerful  ,'ind  inlluenlial." 

"  Had  1  ever  denounced  i)arties  to  a  jury,  I  could  not  help  thinking 
that  I  should  have  ijervertei!  the  use  of  judicial  power  to  a  wrong  and 
dangei'ous  end.  It  is  with  deep  regret  that  I  have  now  spoke  ujion  the 
topic  of  parties;  it  is  not  from  choice,  liut  from  necessity;  not  to  act, 
but  to  counteract.  ^lay  this  circumstance  be  the  only  one  in  my  life 
whei'cin  I  feel  myself  under  the  obligation  of  addressing  to  a  jury,  iqioii 
so  delicate  and  perplexing  a  sulijoct." 

Addison  int('rru|)ted  Lucas,  telling  him  that  the  proceeding  was  ex- 
traordinary and  not  usual,  and  that  he  nnist  desist.  Lucas  said  it  was 
his  vight  and  would  proceed.  The  presiding  justice  then  adjourned 
the  court  until  the  afternoon.  When  the  court  reopened  in  the  after- 
noon,,ludge  Lucas  again  began  to  charge  the  jury,  when  Addison  com- 
manded him  to  be  silent,  and  informed  him  that  the  court  n-ould,  and 
knew  h(jw  to  enforce  obedience. 

A  motion  was  thereupon  made  by  the  nttorney-genera!  before  the 
Supreme  Court  for  leave  to  file  an  information  against  .ludge  Addison 
on  account  of  his  misbehavior  in  this  case.  The  court  dismissed  the 
proceeding  on  the  ground  that  no  crime  was  charged.  The  chief-justice 
said  :  "  We  will  not  iiear  the  right  questioned  ;  there  can  be  no  doubt 
of  the  right.     Tlie  right  of  every  judge  is  equal  as  to  expressing  him- 


API'.] 


rENNSYLVAXIA. 


063 


self  to  a  jury  grand  or  petit;  whether  supporting  or  (lisscntin<r.  Nay, 
if  lie  dissents  in  opinion,  he  is  {guilty  of  a  lireaeh  of  trust,  if  he  docs  not 
express  it.  The  allldavit  does  not  state  malice.  It  would  seem  to  be 
a  mistake  of  right.  Unless  a  crime  is  stated  the  court  cannot  take  cog- 
nizance. There  may  be  another  remedy.  It  does  not  lie  witli  us  to 
say  wliat  that  is.  The  proceeding  was  arbitrary,  unbecoming,  unhaud- 
Bomo,  ungeutlemanly,  unmannerly  and  improper;  but  there  not  being 
an  imputation  of  wilful  misbehaviour  and  malice,  it  is  not  indictable, 
or  the  subject  of  an  information." 

Addison  was  thereupon  in  the  following  year,  1H02,  impeached,  and 
in  1M();(,  convicted  and  removed  from  olllce  upon  articles  charging  these 
offenses.  The  prosecution  was  conducted  l)y  Alexai dor  .1.  Dallas  and 
^I'Kean  as  counsel  for  the  house  of  reprebcntiitives.  Addison  defended 
himself  in  person  with  great  vigor  anil  ability." 

I'jnlioldencd  by  their  success,  the  Democratic  party  then  attacked 
the  whole  supreme  court  of  the  Slate,  with  the  exception  of  Judge 
IJrackeuridge,  who  was  a  Democrat. 

A  dispute  had  arisen  in  IHltii,  liotwccn  'J'honiiis  I'assmore  and  Andrew 
liayard,  concerning  the  liability  of  Hayard  anil  other  inulerwriters  upon 
a  policy  of  marine  insurance.  The  arbitrators  to  who-:n  the  matter  had 
been  referred  decided  in  fiwor  of  Tassmore,  but  Hayard  was  advised  by 
counsel  that  the  decision  was  illegal  for  irreguhirity  in  the  i)roc(e(lings, 
and  consequently  institutetl  proceedings  in  the  Supreme  Court  to  set 
aside  the  judgment  entered  upon  the  award.  Thereuiion  I'assmore 
abused  him  and  his  lirm  in  a  public  coffi-e-liouse  as  "rpiibbling  under- 
writers" who  had  basely  kept  from  the  sid)sci'iber  the  money  included 
in  the  award;  stigmatized  their  conduct  "as  a  mean,  dirty  action," 
publicly  declared  IJayard  to  lie  "a  liar,  a  rascal,  and  a  coward,"  and 
offered  "  24  per  cent  to  any  good  jicrson  or  persons  to  insure  the 
solvency  of  I'ettit  and  Hayard.  I'oi'  four  months  from  this  date." 

The  Supreme  Court  held  this  to  be  a  contemi)t,  and  counnitted  Pass- 
more  in  conse(|nencc  to  jail  for  thirty  ibiys,  with  a  line  of  lifly  dollars. 
The  articles  of  iMipeachment,  which  were  voted  in  l.S(l|,  charged  that 
the  conunitment  was  wrongful  and  illegal,  innsnuich  as  the  alleged 
contemjtt  was  not  counnitted  in  the  presence  of  the  court. 


*•  Tlio  Trial  ot  Alesnndor  Adciison, 
Esq.,  President  of  tlie  Courts  of  Cuiii- 
mon  riens,  In  the  ("Inijlt  Consist iiiK 
of  llicCinmllcsof  Wi'siniiircliuiil,  Fii}'- 
elti",  WiisldMj;l<)ii,  mid  Allculiiiiiv.  On 
anlmpeni'hiiKMit  liy  lli(>  Iloiisr  of  Kep- 
reseutativos.     Uofore    llie    St'iuite   of 


the  Coitnnoiiwonltli  of  Pennsylvania. 
Tal<cn  in  Slmrlliiind  liy  Tin imaa  Lloyd. 
Ki^'iiiid  edition,  with  iiddit ions.  Liin- 
easter,  printed  liy  (iiMimo  Ili'liiiliold, 
Jr.,  fur  Lliiyd  nnd  Molndiold,  Jun., 
iH03.    (Copyright  secured.) 


(J»>4 


STATE   IMI'EACHMENT   TKIAL8. 


[AIM-. 


Tilt'  bar  of  tlie  State  of  Pennsylvania  stood  by  the  justices  of  the 
court,  and  so  did  Jud<i;o  Braekonridge,  the  only  Democratic  member. 
Tlu(  assembly  was  consequently  obli<?ed  to  retain  Rodney  of  Delaware 
to  conduot  the  prosecution.  lie  was  assisted  by  a  layman,  Itoileau, 
one  of  the  managers  of  the  house  of  representatives,  who  argued  against 
the  justiees  in  a  speech  that  displayed  great  wit  and  fancy.  Jared  lu- 
gersoU  and  Alexander  J .  Dallas,  two  leaders  of  the  Pennsylvania  bar,  ap- 
j)eared  for  the  impeached  justices,  at  the  trial  in  1805.  The  respondents 
were  acquitted  by  a  vote  of  thirteen  of  guilty  and  eleven  not  guilty; 
less  than  two-thirds  being  consequently  against  them.  An  act  was 
8ubse(iuently  passed  which  has  been  copied  in  most  States  and  also  by 
Congress,  making  it  unlawful  to  punish  for  contempt  an  act  not  com- 
mitted in  the  presence  of  a  court  or  tending  to  obstruct  the  execution  of 
its  decrees.'' 

In  IHIO,  Walter  Franklin,  the  president,  and  Jacob  Ilibshman  and 
Thomas  Clark,  associate  judges  of  the  Court  of  Common  Pleas  of  Lan- 
caster County,  were  impeached  and  tried  before  the  senate  of  Penn- 
sylvania. A  single  article  was  presented.  This  charged  that  tiie 
resi)ondent"  had  improperly  refused  to  compel  certain  attorneys  to  pay 
to  their  clients  moneys  which  they  had  collected  and  unjustly  retained. 
The  judges  were  all  acquitted.*" 

The  same  Judge  Franklin,  who  was  then  president  judge  of  the 
second  judicial  district  of  Pennsylvania,  was  again  impeached,  tried 
and  acquitted  in  1825.  The  articles  charged  :  a  delay  of  the  administra- 
tion of  justice  in  many  cases  to  an  extent  commensurate  with  a  denial 
thereof,  "  viz.  The  decision  of  that  descrii)tion  of  causes  which  are  to 
be  decided  by  tiie  court  without  the  intervention  of  a  jury,  and  which 
in  his  courts  are  included  under  the  denomination  of  causes  on  llie 
argument  list,  is  by  him  habitually  deferred  unnecessarily,  under  pre- 
tence of  holding  under  advisement  for  a  time,  totally  inconsistent  with 


'■'•  Report  of  the  Trial  and  Ac<niittal 
otEiIwaril  t  liipin'n,  Es(|.,  C'liief-Jii.sticc, 
and  Jnspur  Yeales  ,"111(1  Tlioiims  Siiiilh, 
Esquires,  Assistiint.TiisticcH  of  the  Su- 
proiiic  Oinirt  of  Pi'iinsylvmiin.  On  an 
Impoachnicut,  liefon-  tlio  SiMiato  of  tlio 
roiiimoiiwcaltli,  January,  1H05.  By 
AVilliani  H.iinilton,  Editor  of  llie  Lan- 
castcr  .Tournal.  Lancaster:  printed 
by  tlio  Ki'iiorter.  pp.  491.  With  an 
Appendix,  |]p.  9(i. 

*"  {Appendix.)    Journal  of  the  Pro- 


ceedings of  the  Senate  of  Pennsylvania, 
.sitliuii  as  the  Hi^li  Court  of  luipeach- 
niont,  on  llic  trial  of  an  article  otaccu- 
Mation  and  iiupcaclimcnt  preferred  by 
the  House  of  Uepreseiitalivcs,  ajiaiiist 
Walter  FrankliM,  rresidcnl,  and  Jacol) 
HiliKliinaii  and  Tlioiiias  CMarlt,  Associ- 
ate Judges  of  llie  Court  of  Co  imon 
Pleas  of  Lancaster  County,  pp.  1'2. 
Appendix  to  Senate  Journal  for  181(i, 
Harrisliuig :  jiriuted  by  Christian 
Gleini,  IHIG. 


[AI'1'. 


AI'l'.] 


PENSSYI.VAMA. 


66;") 


a  due  iulniinistration  of  justice,  altlioiigh,  in  many  instanccp,  the  cases 
have  not  required  any  extraordinary  exertion  of  intellect  or  of  Icffal 
knowledge,  insonmcli,  that  conformably  to  his  practice,  but  little  facility 
is  afforded  to  a  party  in  obtaining  a  prompt  decision  of  a  cause,  in  con- 
se(|uence  of  its  being  plain  and  not  involving  any  intricacy  of  testimony 
or  of  law ;  all  being  e(pialiy  involved  in  the  general  habit  of  procrasti- 
nation ;  "  similar  action  upon  the  return  of  writs  of  certiorari  to  review 
the  proceedings  of  justices  of  the  peace  iu  violation  of  an  act  of  the 
general  assembly ;  a  fraudulent  tampering  with  the  records  of  the  court 
so  as  to  enter  a  decision  different  from  tliat  previously  made  by  him ; 
leaving  the  court  during  a  criminal  trial  so  that  a  verdict  of  guilty  was 
returned  and  recorded  in  liis  absence,  and  when  a  motion  for  a  new  trial 
was  made  on  this  ground,  in  consideration  of  the  withdrawal  of  such 
motion,  the  sentence  of  the  prisoner  to  a  nominal  penalty.  The  respond- 
ent was  acquitted  by  a  majority  vote  of  not  guilty  upon  all  the  articles." 

In  the  same  year,  182;'),  Kobert  I'orter,  president  judge  of  the  third 
judicial  district,  was  also  impeached  and  acquitted.  The  articles  charged 
a  refusal  to  furnish  his  reasons  for  a  report  which  he  had  made  as  ref- 
eree, and  a  dismissal  of  exceptions  taken  to  such  report  for  the  reasons 
assigned  by  the  party  iu  whose  favor  the  report  was  made ;  the  public 
insult  of  three  iiui-keepers  in  open  court,  by  charging  them  with  keeping 
disorderly  houses  and  allowing  gambling  in  their  inns;  unlawful  at- 
tempts, one  of  which  was  successful,  to  procure  the  supjiression  and 
compounding  of  a  felony ;  improperly  attempting  l)y  intimidation  to 
persuade  a  jury  to  bring  in  a  verdict  contrary  to  that  wliich  tiiey  i)ro- 
posed  to  reniler;  the  falsillcation  of  a  record  and  a  bill  of  exceptions 
after  the  case  had  been  removed  to  a  court  of  review  on  writ  of  error; 
a  refusal  to  comply  with  a  request  to  reduce  his  opinions  (o  writing  in 
compliance  with  the  stat'Ue  in  several  cases ;  unlawfully  reducing  an 

^essment  for  road-taxes;  insulting,  threatening  and  intimidating  one 
of  his  associate  judges  on  the  bench  in  opcfi  court  when  the  judge  hesi- 
tated to  concur  in  a  decisiori  which  he  rendered ;  similar  indecent 
conduct  towards  tlie  same  judge  iu  several  other  cases,  and  in  one  case 
thus  preventing  him  from  addressing  a  jury.  The  ac(|uittal  was  in 
some  cases  unanimous,  in  the  rest  l)y  a  large  nuijority  vote  of  not  guilty." 


♦•  Journal  of  tlio  Court  of  Inipivu'li- 
ment,  for  (he  trial  of  W.ilti'r  Friiiiklin, 
Es(|uir(',  Pi'i'sidonl  Jiulitoof  thcsi'conil 
ju(li(!lal  (list  rift  of  I'cimaylvania,  for 
Misdenieatiors  in  oflico,  befont  the 
Senate  of  Iho  Coiiiiiiouwealth  of  Penn- 


sylvania.      Hurrlsburg:    printed    by 
Mowrv  A  C'aiMPron,  1825. 

*''  .lournal  of  Iho  Court  of  Iinpench- 
mcnl.  for  the  trial  of  Koliert  Porter, 
Es(|iiiri',  PrcsUlonl  .TudKe  of  the  Third 
Judicial  District  of  Pennsylvania,  for 


tjt;(i 


STATK    UirKAClI.MKNX   TIJIALS. 


[AIT. 


In  ISJG,  Solli  C'liapiimn,  prcsitlnit  judue  of  tl;e  eiplith  judicial  dis- 
trict of  IViiiisyiviinia,  was  iiiijii'aclicd.  The  articles  cliarfjcd  an  illcpil 
aiTL'st  witlioiit  any  verified  complaint;  a  violation  of  a  statute  liv  the 
issue  of  a  writ  of  certiorari  to  set  aside  a  judgment  of  a  justice  of  the 
peace  more  than  twenty  days  after  it  was  rendered ;  a  refusal  to 
tile  an  opinion  and  his  charge  to  Ihe  jury  in  a  case  which  the  unsueeess- 
ful  ])arly  desired  to  review  by  writ  of  error;  and  the  exercise  of  undue 
partiality  and  favoritism  by  bis  rulings  on  the  admission  of  evidence 
and  his  cliarge  to  the  jury  in  two  cases.  He  was  acquitted  by  a  unani- 
mous voto  on  two  of  the  charges  and  by  a  large  majoritj'  in  favor  of 
the  respondent  ou  the  remainder." 

The  senate  of  Pennsylvania  has  also  addressed  the  governor  for  the 
removal  of  Kdward  Rowan,  high  sheriff  of  Philadelphia,  and  .Judge  .loiin 
M.  Kiriipatrick  of  Pittsburg  —  the  latter  in  1885,  both  for  physical 
and  mental  incapacity. 

On  October  i;5th,  1891,  Governor  Pattison  convened  the  Pennsylva- 
nia senate  on  executive  business  to  consider  charges  against  the  State 
treasurer,  Henry  K.  IJoyer,  and  auditor-general  Thomas  McC'aniaiit, 
of  wasting  the  State  funds  bj'  i)ermitting  .John  liardsley,  the  city  treas- 
urer of  Pliiladelpliia,  in  consideration  of  bribes  paid  them  by  him.  to 
retain  in  his  hands  State  taxes  collected  by  hiui,  wliicli  he  embezzled  to 
an  amount  in  excess  of  a  million  dollars  ;  and  in  the  case  of  the  auditor- 
general,  of  approving  bills  for  advertising  a  list  of  fictitious  names  of 
alleged  delinniu'nt  tax-payers.  Philadelphia  city  otilcers  were  also  af- 
fected by  the  latter  charge.  The  counsel  for  all  the  otilcers  objected  to 
the  jurisdiction  of  the  senate  upon  the  grounds  that  the  governor  had 
no  jiower  to  institute  charges,  that  the  proceedings  upon  such  charges 
were  not  "executive  business,"  and  consequently  could  not  be  cousid- 
eri'd  at  an  extraordinary  session  of  the  senate,  and  that  no  ollicer  could 
be  removed  for  an  im])eacliablc  olTense  without  a  previous  conviction 
upon  an  impeachment  or  indictment. 

By  a  party  vote  of  twenty-eight  yeas  to  nineteen  nays  the  following 
resolutions  were  adopted  :  — 

"  TK/icre«.i,  the  Senate  of  Pennsylvania  having  been  convened  in  extra- 
ordinary session,  for  executive  business,  on  October  13th,  A.  I).  ]8!ll,  His 


Mlsilenieanors  in  Oniee,  before  the 
SiMiiilo  of  the  Coiuniimweultli  of  IVnn- 
eylvaiiia.  Harrislnirn  :  printed  by  Cam- 
eron .t  Kniijso,  1H2!). 

*'  Juiirnul  of  "le  Court  of  Inipoarh- 
ment  for  the  trial  of  Setli  Clmpiiiau, 


Esquire,  President  JuilReof  tlie  Eiphth 
Judiiiftl  District  of  ronnsj'lvaniii,  for 
Misdemeanors  In  OITlce,  before  the 
Seual((  of  llio  Commonwealtli  of  Penn- 
sylvauiu.  Harrisburg :  printed  by  Cam- 
eron A  Krauso,  182G. 


Al'I'.] 


I'lCSNSYLVANlA. 


(KiT 


Kxci'llciicv  the  (iovcnioi-  <li(l  (luicupon  Irniisniil  t<>  this  Imdy  liis  iiicss:;'.'c, 
wlu'i-ciii  il  !ipp(';ir-<  thai  tlic  husiiicss  I'ur  wliicli  il  was  cinivciird  as  arun^aid. 
was  the  iiivcslig.'itiDii  of  cciiaiii  cliarjics  of  otlicial  niUcoiidml,  fully  s(  ( 
forth  in  said  iiiL'ssag(\  aL;ainst  Ilciirv  K.  JJoycr,  Statu  Truasiircr,  "Jlioiiias 
McCaniant,  iiudilor-fji'iuMal  ;  and  against  certain  magistrates  of  tlic  eity  of 
Pliiladelphia,  willi  a  view  to  ad<lressing  tlie  (iovernor  asldng  for  tlie  re- 
moval of  said  otlieers  ;  Ami  irhcn n^:,  eaeli  of  said  aecnsi-d  olljcers  ilid 
appear  anci  make  answer  denying  the  jnrisdielion  of  llie  Senate  to  investi- 
gate any  of  said  charges,  and  to  a(hlress  llie  (iovernor  as  aforesaid  for  or 
liy  reason  of  anylliing  in  said  proclamation  and  mossagi^  contained,  and 
also  <lenying  ea(di  and  every  of  said  diarges  ;  .[ml  it- he  mis,  this  body, 
having  jiostponed  tlie  consideration  of  thi' (pH'slion  of  Jurisdiction  in  the 
premises,  diil  jiroceed  to  malie  a  full  anil  coiniilete  investigation  of  said 
charges  against  said  TIenry  K.  ]ioyer.  State  Treasurer,  lieing  assisted 
tliroiigliouf  its  said  investigations  liy  the  Attorncy-ficneral  of  the  Com- 
monwealth ;  Aiiit  irlii'rni.<.  The  Senate  has  now  lieard  full  ariju  nenl  upon 
.sai<l  (piestion  of  jurisdiction  and  lias  fldly  considered  the  same  ;  therefore, 
/.^No/ici/,  'i'liat  as  tlie  said  charges  i)rel'erred  liy  the  (iovernor  in  manner 
aforesaid  against  said  olhcers,  are  charges  of  misdemeanor  in  ollice,  for 
which  said  ofBcers  could  be  proceeded  against,  both  by  impeachment  and 
by  indielnient,  and  if  convicted  tliereof,  in  cither  of  said  ways,  could  be 
removed  ;  the  Senate  lias  no  jurisdiction,  under  Section  4  of  Article  \'I  of 
the  Constitution  in  this  proceeding,  to  inquire  into,  hear  a'.nl  determine 
said  charges  of  otlicial  inisconduct,  and  to  address  the  (iovernor  asking  for 
(he  removal  of  said  officers  by  reason  thereof,  and  thereby  to  deprive  said 
officers  of  the  right  to  trial  by  jury,  guaranteed  to  them  under  Article  I,  or 
to  a  trial  in  regular  proceedings  by  impeacliment  in  accordance  with  .Sec- 
tions 1,  2,  and  li,  of  Article  \'I  of  the  Constitution.'' 

"  H7k')'C((.s-,  the  Senate  hasalready  decided  in  the  case  of  Henry  K.  Boyor 
Slate  Treasurer,  tliat  it  has  no  jurisdiction  under  the  Constitution,  in  this 
proceeding,  to  iiifiuire  into,  hear  and  doterniine  the  charges  of  official  niis- 
<M)iiiluel  pi-eferred  against  liiin,  and  to  address  the  (iovernor  asking  for  his 
lemoval  from  said  ollice  of  State  Treasiu'cr,  for  or  on  account  of  anytldng 
in  the  proclamation  or  message  of  the  (iovernor  containeil  ;  And  iilicrcns, 
The  charges  against  all  the  other  ollicers  named  in  said  message  are  also 
charges  of  oflicial  misconduct,  and  said  ruling  of  the  Senate  on  the  (|ues- 
lion  of  jurisiliction  in  the  said  case  of  tlie  said  Henry  K.  Hoyer  applies 
with  equal  force  and  effect  to  the  cases  of  all  the  other  otlicers  named  in 
.said  message  ;  Anil  ii'ltvi-i'iis  il  having  been  decided  by  the  senate  in  manner 
aforesaid  that  it  is  without  jurisdiction  in  the  premises,  no  good  end  would 
be  accomplished  by  further  protracting  this  session  ;  therefore,  liesolreil. 
That  when  tlio  Senate  a<ljourns  to-day  it  shall  adjourn  .sine  ilie.'^  '* 

"  .loiiriml  of  the  Senate  of  the  Com-  rlslmrg  on  the  l^lh  Pay  of  October, 
monweallh  of  Pennsylvania  for  the  1H!)1.  IlnrrlsburB  :  Edwia  V.  Meyers, 
Extraordinary  Se.iion  Begun  at  Hiii-      State  Printer.     1891.     pp.  734. 


6*18 


STATK    IMI'KACIIMENT   TKIALS. 


[AIM'. 


WEST   VIKGINIA. 

In  Wpst  Virginia,  in  1808,  Juilgu  William  L.  Ilindman  of  the  eighth 
jiuliciul  fii'ciiit  was  removed  from  ofliee  by  the  legislature  for  admitting 
to  the  bar  Samuel  A.  Miller  and  Samuel  Priee,  former  odieers  under 
the  Confederate  government,  without  requiring  from  them  the  test-oath 
preserihed  by  the  State  law  of  February  lltli,  18()(;,'"  wliieh  the  State 
Court  of  Appeals  had  held  to  be  constitutional,'"'  but  whieh  was  similar 
to  a  Federal  statute  whieh  the  Supreme  Court  of  the  United  States  had 
held  to  be  uneonstitutioiiul  as  an  ex  post  facto  law."  The  respondent 
was  ill  and  on  that  aeeount  re(iuested  a  posti)onement  of  the  hearing  till 
the  summer  session.  Ilis  re(|Uest  was  refused.  The  hearing  proceeded 
before  the  senate  in  his  absence  and  without  any  defense  by  him.  The 
facts  charged  were  proved  and  he  was  removed  from  his  State  olllee  for 
his  obedience  to  the  Constitution  of  tiie  United  States.** 

In  1875  and  187G,  John  S.  Hurdctt,  the  treasurer,  and  Edward  A. 
Bennett,  tl'c  auditor,  were  impeached  and  tried  before  the  senate  of  the 
same  State. 

The  urtides  against  IJunlctt  charged  :  in  various  forms,  a  corrupt 
agreement  witli  a  bank  by  which,  in  consideration  of  money  paiil  him  and 
his  son,  he  kept  an  average  deposit  of  $10,000  of  the  State  funds 
there  upon  which  the  State  should  have  received  interest ;  a  similar 
agreement  with  another  liank  by  which  he  kept  an  average  deposit  of 
88000  there  in  return  for  a  loan  of  Si'')00  made  to  his  son,  and  renewed 
as  long  as  the  deposit  was  iriaintained  ;  a  similar  agreement  with  a  third 
bank  ;  a  failure  to  keep  accounts  and  make  semi-annual  reports  of  the 
moneys  received  and  disbursed  by  him,  showing  the  amount  of  money 
on  de[)osit  in  each  designated  depositary,  the  rate  and  amount  of  interest 
received  thereon,  and  the  amount  and  character  of  the  security  given  by 
each  depositary  ;  concealment  from  the  board  of  pulilic  works,  of  which 
he  was  a  member,  of  liis  knowledge  that  tliey  could  collect  a  greater 
rate  of  interest  on  deposits  than  was  demanded  by  them  ;  the  retention 


«  West  Virginia  Laws  of  18(!G,  eli. 
XXX,  p.  1!). 

<o  ICx  jmrlc  Hunter,  2  W.  Va.,  122, 
A.  X>.  Wu  ;  Kx  piirle  Qiiarrier,  2  W. Va., 
5G9,  A.  D.  IHOr, ;  cf.  Kr  pm-le.  Qimrrior, 
4  W.  Va.,  210,  A.  D.  1H70;  Kx  parte 
StruUon,  1  W.  Vn.,  MW-,,  A.  I).  18Gfi; 
Ex  parte  Faulkner,  W.  Vn.,  2fi!»,  A.  D. 
18CG. 

«'  Ex  parte  Cnirhmil,  4  Wall.,  333. 

"  See  tlie  House  Journal  of  Wust 


Virginia  for  18G8,  in  the  Now  York 
State  Liliriiry.  Apiiloton's  Annua!. 
Eneyclopiedia  for  18CH,  pp.  7l!3-7(;4, 
erroui'oiisly  (lescriln'S  this  as  an  iin- 
poachineiit.  Siibs(MiuiMit  to,  if  not  in 
consccincnco  of  this  proceeding,  tho 
West  Virjciii'ii  0)url  of  Appeals  refused 
to  follow  the  decision  of  tlio  Supremo 
Court  of  the  United  States.  {Ex  parte 
Quarrler,  4  W.  Va.,  210,  A.D.  1870.) 


AIM'.] 


NORTH   CAROLINA. 


(ICO 


and  collection  of  gratuities  from  tlie  (K'lxiHitsiries  for  sucii  concoMliiniit  ; 
the  so  negligent  and  cureless  conduct  of  the  Imsincss  of  his  odlce  ihiit 
his  son,  who  was  eni])love(l  therein,  was  ulilo  to  niuko  corruiit  aiTaiige- 
nieiits  witli  certain  .State  depositaries  wlicreliy  the  imtrimage,  favors  and 
ollicial  influence  of  the  respondent  wore  made  and  i>ecanie  a  source  of 
private  and  personal  revenue  and  proHt  to  his  son. 

The  respondent  was  convicted  upon  two  articles  which  cliargcd  liini 
with  making  a  proposition  to  a  bank  throuirh  its  president  to  secine  to 
it  a  certain  average  amount  of  State  funds  upon  condition  that  it  woidd 
allow  and  pay  him  for  his  own  jjcrsonal  use,  interest  of  one  or  two  per 
cent  jH'r  annum  upon  an  average  amount  which  he  kept  on  deposit ;  and 
an  executed  conspiracy  with  his  son  un<ler  which  he  kept  an  average 
deposit  of  State  funds  to  the  amount  of  810, 000  in  anotiier  liank  under 
an  agreement  by  which  the  bank  paid  him  and  his  son  three  per  cent 
per  annum  U])on  the  amount  thus  deposited.  Tlie  penalty  imposed  wji- 
removal  fnmi  olHce  and  dis(|nalilie!ition  frcmi  holding  that  olllce  during 
the  remainder  of  his  ollicial  term.'" 

Kdward  A.  Bennett,  the  auditor,  was  ciiarged  with  a  failure  to  keep 
an  account  of  moneys  received  and  disbursed  by  liini,  neglect  and  re- 
fusal to  make  a  aemi-aimual  report  tliereof,  and  the  receipt  of  money 
from  insurance  companies  for  which  he  did  not  report  or  account  to 
the  State  ;  the  embezzlement  of  the  money  thus  collected  ;  the  dei)oait 
of  State  funds  in  a  bank  in  consideration  of  a  payment  to  him  for  such 
deposit ;  the  extortion  of  illegal  fees  from  foreign  insiu'ance  companies 
transacting  business  in  the  State  ;  the  collection  of  interest  due  the  State 
and  the  retention  of  the  same  to  his  own  usi;  for  several  months ;  the 
corrupt  solicitation 'of  a  bank-president  to  pay  him  a  commission  for  a 
deposit  of  State  funds,  and  a  successful  corrujit  combination  witli  the 
treasurer  to  extort  $1000  from  a  bank  in  consideration  of  tlic  promised 
use  of  the  power  and  influence  which  they  claimed  to  jjossoss  over  the 
deposit  of  State  funds  to  cause  and  secure  an  average  deposit  of  StO,000 
in  said  bank  for  the  year  1872.     The  respondent  was  acquitted." 

NORTH  C.VROLINA. 

The  Fourteenth  Amendment  and  tlie  Reconstruction  Acts  (lei)rived 
for  a  long  time  nearly  all  the  tax-payers  of  the  South  from  participation 


*»  Proeoedings  of  the  Senate  sitting 
for  the  trlnl  of  tl\o  iniponeliuient  of 
Joim  8.  Buniott,  Tronsurer  of  the 
State  of  West  Virginia.  Wheeling: 
John  W.  Gentry,  printer,  1875 ;  pp. 
101. 


*»  Proceedings  of  the  Senuve  sitting 
for  the  triiil  of  the  impenehnieut  of 
Eihvaid  A.  Bennett,  Auditor  of  the 
State  of  West  Virginia.  Wheeling: 
John  W.  Gentry,  Printer,  1875 ;  pp.  84. 


«T(J 


KTATK   IMPEACMMKXT   TltlAI.S. 


[ait, 


ill  tlif  j^ovcM-nmcnt  of  llicir  roHpectivi!  Stiitos.  Tliey  wore  coiiscqiii'iitly 
Biilijccteil  to  tlio  rule  of  tlic  i<;iioi':int  niul  illiterate  blacks,  who  were 
usiiiiliv  li'tl  l)_v  udvi'iitiirers  from  tlie  North  known  ns  farpot  liiifitfrorK. 
Thi'  result  was  fre(|Uciit  )>ill!i^o  of  the  pulilie  treasury  ami  roliliery  of 
the  tax-payers  under  the  forms  of  law."  To  counteract  thin,  and  to  in- 
tiniidale  tlie  nejjroes  from  exercisinjj  their  pr)litieal  rightH,  a  secret  or- 
ganization known  as  The  White  lirotherhooil  or  the  Ku-klux  Klan  was 
formed  in  many  of  the  Southern  States.  The  inendiers  of  this,  who 
were  <li\  idi'(l  into  different  camps,  paraded  through  the  villages  at  night 
disguisi'd  in  white  garments  and  masks  for  the  pur))ose  of  striking  terror 
lull)  the  hearts  of  the  Macks.  Many  of  their  memhers.  either  with  or 
without  the  authority  of  tlic  organisation,  conunitted  crimes  in  similar 
disguise.  Hlacks  and  whites  were  dragged  from  their  houses  at  night 
and  whip|)ed  ;  otliers  were  hung ;  others  were  ordered  to  leave  and 
driven  out  of  the  iieighhorhood  through  fear  of  death.  When  com- 
plaints were  made  to  the  pidilic  authorities,  in  many  instances  they  were 
dismissed  liy  the  conmiitting  magistrates.  In  others,  grand  juries  filled 
with  memhers  of  the  Klan,  refused  to  find  intlietments,  and  prosecuting 
attorneys  failed  to  jmsh  the  proceedings. 

In  North  Carolina,  a  law  was  passed  making  the  act  of  going  masked, 
disguised  or  painted  a   felony.'-' 

Notwithstanding  this,  in  the  counties  of  Alamance  and  Caswell,  of 
that  State,  a  ninnlier  of  whippings  and  murders  hy  hands  of  men  armed 
and  disguised  took  place,  and  the  puhlic  authorities  failed  to  find  any 
indictments  in  conseiiuenee  thereof.  The  governor  of  North  Carolina, 
WilHam  W.  llolden,  under  an  act  of  the  legislature,  proclaimed  those 
counties  to  he  in  a  state  of  insurrection,  and  sent  troops  of  militia  to 
enforce  order  in  the  comities.  The  otilcer  in  command  of  those  troops, 
Colonel  (ieorge  W.  Kirk,  arrested  and  imprisoned  many  civilians,  and 
tortured  some  of  them  in  order  to  olitain  evidence  as  to  the  perpetrators 
of  these  miu'ders.  The  civil  courts  in  those  counties  were  still  open. 
An  application  for  a  writ  of  habeas  corpus  was  made  to  the  chief -justice 
of  the  State  by  some  of  these  prisoners.  Colonel  Kirk,  acting  under  the 
orders  of  the  governor,  refused  to  obey  the  writs.  The  governor  justified 
him  in  this  course.  Chief-.lustice  I'earson,  who  during  the  Civil  War 
had  taken  a  bold  stand  by  the  frequent  issue  of  this  writ  against  the 
Confederate  authorities,  then  wrote  the  governor,  enclosing  copies  of 
these  writs,  together  with  allldavits  setting  out  that  Colonel  Kirk  refused 
to  make  return  thereto,  and  said  that  he  had  made  the  arrests  at  the  gov- 
ernor's orders ;  and  asked  for  information  whether  Colonel  Kirk  acted 
under  the  orders  of  Iloldcu  when  making  the  arrests.     The  governor 

"1  Supra,  §  38.  '2  Act  of  April  12,  1869. 


[AIM'. 


AIT.  j 


NOUTH   CAUOLINA. 


071 


rt'Iili"''!'  stiitinR  that  thn  arrcBts  ami  (U'tcntion  were  made  hy  liis  order, 
and  tliiit  "  I  iiiii  Hatitilii'd  tbut  tiiu  puMie  iiitoretit  rciinircH  that  tlu-MO  iiiil- 
itarv  iniMDiuTs  hIiuII  not  be  delivered  up  to  llie  eivil  power.  I  devoutly 
hope  that  tiie  time  may  lie  short  when  a  restoration  of  |)eaee  and  order 
may  release  Alamaiiee  County  from  the  presence  of  military  force  and 
the  enforcement  of  military  law.  Wlicn  that  time  shall  arrive  I  shall 
promptly  restore  the  civil  power."  The  chief-jnstice  held  that  the  writ 
of  habeas  corpus  could  only  be  suspended  by  the  le<rislatiu-e,  which  had 
not  authori/cd  such  suspension.  lie  refused  to  commit  the  colonel  for 
contempt  of  coiu't  in  the  use  of  insolent  lan)!uage  upon  his  refusal  to 
obey  the  writ.  lie  denied  a  motion  for  the  issue  of  a  preeo])t  directing 
the  sheriff  of  the  county  to  execute  the  writ,  saying  in  his  opinion  :  — 

"  The  petitioner  is  entitled  to  this  writ ;  the  only  (piestion  is.  to  whom 
shall  it  be  directt^d.  The  motion  is  that  it  should  be  directed  to  the 
sherilT  of  some  county.  I  have  considered  the  matter  fully,  and  have 
come  to  the  conclusion  not  to  direct  it  to  a  sheriff.  The  act  pives  a  dis- 
cretion. Tn  the  present  condition  of  thinffs,  the  counties  of  Alamance 
and  Caswell  declared  to  be  in  a  state  of  iusiu'rection  and  occupied  by 
niililary  forces,  and  the  public  miiid  feverishly  excited  ;  it  is  highly 
prolialil,',  nay,  in  my  opinion,  certain,  that  a  writ  in  the  hands  of  a  sheriff 
(■!>itli  authority  to  call  out  the  power  of  the  county),  by  which  he  is  com- 
manded with  force,  if  necessary,  to  take  the  petitioner  out  of  the  hands 
of  the  military  authorities,  will  plunge  the  wiiole  state  into  civil  war. 
If  the  sheriff  demands  the  petitioner  of  Col.  Kirk,  with  his  ])resent 
orders,  he  will  refuse,  and  then  comes  war.  The  country  has  had  war 
enough.  Hut  it  was  said  by  the  counsel  of  the  petitioner  '  if  in  the  asser- 
tion of  civil  liberty,  war  comes,  let  it  come.  The  blood  will  not  be  on 
your  hands  or  on  ours  ;  it  will  be  on  all  who  disregard  the  sacred  writ 
of  habeas  corpvH.  Let  justice  be  done  if  the  heavens  fall.'  It  would 
be  to  act  with  the  impetuosity  of  youth  and  not  with  the  caluniess  of 
age,  to  listen  to  such  counsels.  '  Let  justice  be  done  if  the  heavens 
fall,'  is  a  beautiful  figure  of  speech,  ([uoted  by  every  one  of  the  five 
learned  counsel.  .Justice  nuist  be  done,  or  the  power  of  the  judiciary 
be  exhausted,  but  I  would  forfeit  all  claims  to  prudence  tempered  with 
firmness,  should  I,  without  absolute  necessity,  add  fuel  to  the  flame  and 
plunge  the  country  into  evil  war,  provided  my  duty  can  be  fully  dis- 
charged without  th.it  awful  consequence.  Wisdom  dictates  if  justice 
can  be  done  'let  heaven  stand.'  I'nless  the  governor  revokes  his 
orders,  Col.  Kirk  will  resist ;  that  appears  froi;i  the  affidavit  of  service. 

"The  second  branch  of  the  motion,  that  the  power  of  the  county  be 
called  out  if  necessary,  to  aid  in  taking  the  petitioner  by  force  out  of 
the  hands  of  Kirk,  is  as  difficult  of  solution  as  the  first.     The  power  of 


r,7i 


STATE   IMl'EACIIMEXT   TUIALH, 


[AI'I". 


the  cimnty  or  ^  posse  comitatus,'  means  the  men  of  the  county  in  which 
the  writ  is  to  be  executed ;  in  tliin  iiistunce  Caswell,  iiml  timt  eounty  Ih 
<lec'lnre(l  to  lie  in  n  Htnto  of  iiisurreetion.  Sliiill  iiinurijents  be  ealled  out 
l)y  tlie  person  wlio  is  to  execute  tiie  writ  to  join  in  eontliel  with  the  niili- 
tiiry  forces  of  the  stiile?  It  is  Hiiid  ii  sulllcient  force  will  volnnteer  from 
other  counties  ;  they  may  lielon;;  to  tiie  assoeiiition.  or  he  perHona  who 
sympathize  with  it.  lint  the  ' ponKC  comitatiiK'  mnst  come  from  the 
eouiity  where  tjie  writ  is  to  lie  executed ;  it  would  lie  illejral  to  take 
men  from  <itlier  counties.  This  is  settled  law  ;  shall  illegal  means  lie 
resorted  to  in  order  to  execute  a  writ?  Aj,'ain  ;  every  ulile  hodied  nutn 
in  the  state  helonjis  to  the  militia.  The  governor  is,  liy  the  constitution, 
'  Connnander-in-Chief  of  the  militia  of  the  Slate,' art.  l.'J,  see.  H.  .So 
the  power  of  the  county  is  comjiosed  of  men  who  are  under  the  com- 
mand of  the  governor;  shall  these  men  he  required  to  violate  with 
force  the  orderi*  of  their  commauder-in-ehief,  and  do  buttle  with  his 
other  forces  that  are  already  in  the  Held?  In  short  the  whole  physieul 
power  of  the  stale  is  liy  the  constitution  under  the  control  of  the  gover- 
nor ;  the  judiciary  has  only  ri  ?m>ral  power ;  by  the  theory  of  the  Consti- 
tution there  can  be  no  eonllict  between  these  two  branches  of  the 
government.  The  writ  will  be  directed  to  the  marshal  of  the  .Supremo 
Court  with  instructions  to  exhiliit  it.  and  a  copy  of  this  opinion,  to  his 
excellency,  the  governor.  If  he  orders  the  petitioner  to  be  delivered  to 
the  marshal,  well ;  if  not.  following  the  example  of  Chief-Justice  Taney, 
in  .Mcrriman's  Case  (.Vnnual  Cydopicdia  for  the  year  lM(il,  page  .'i;).")), 
I  have  discharged  my  duty  ;  the  power  of  the  judiciary  is  exhausted, 
and  the  responsibility  nuist  rest  on  the  executive."" 
(iovernor  Ilolden  replied  as  follows:  — 

'■  To  the  Honorable  1{.  M.  I'earson,  Chief-Justice  of  the  Supreme  Court 
of  yorth  Carolina  : 

"Sir  :  — ■  I  have  had  the  honor  to  receive,  by  the  hands  of  the  Marshal 
of  the  Supreme  Court,  a  copy  of  your  opinion  in  the  matter  of  A.  G. 
Moore  ;  and  the  Marshal  has  informed  me  of  the  writ  in  his  hands  for  the 
body  of  said  Moore,  now  in  the  custody  of  my  subordinate  oflicer  Col. 
(Jeorge  W.  Kirk. 

"  I  have  declared  the  counties  of  Alamance  and  CnswcU  in  a  state  of 
insurrection  and  have  'akeii  military  possession  of  them  —  this  your 
Honor  admits  I  have  the  power  to  do  '  under  the  constitution  and  laws,' 
and  not  only  this,  but  '  to  do  ((i7  things  necessary  to  suppress  the  insurrec- 
tion,' including  the  po.ver  to  '  arrest  all  simpected  persons  '  in  the  above 


"  Ex  parte  Moore,  CA  N.  C,  802. 
Sun  the  porsoiml  exphuiation  of  t'lo 
Chiet-JuBtice  and  the  approval  of  his 


conduet  by  his  associates,  65  N.  C, 
.3 19 ;  mid  see  also  The  Green  Bag,  vol. 
iv,  pp.  536-637. 


AIM'.] 


NOHTH   CAIIOLINA. 


•  m.T 


late  of 
your 
laws,' 
urrec- 
above 

N.  C. 
ig,  voL 


iiiiiiliiiiu'il  ('(luntlcs.  Your  Iluiior  1i:ih  llioiiiilit  proper  iilso  to  declare  lli:i!, 
llii'  I'iti/iiis  of  tlir  rounlics  of  Alaiuaiii'i'  ami  (iisvvill  an-  iii.tiinji  ii/.i,;\i.  iliu 
rusiilt  111'  llic  conxlituliniial  iiiid  lawful  aclloii  of  (lie  Kxi'''Ulivi',  and  Hint, 
tlicrcfdrc,  yiiu  will  not  IsMir  till'  writ  of  huluiin  nirim.i  fur  tlic  |irodilcllon 
of  llic  licidy  of  Mdoro  ti>  any  of  the  men  of  tlir  said  coiinlics,  an<i  tin'  //(insc 
vii(iiil<Hii.-<  must  romr  from  llic  county  where  the  writ  is  to  1><;  executed,  and 
that  any  other  means  to  enforce  the  writ  would  hu  illegal.  1  liavi;  otllcial 
and  rcdialdc  infornnitioii  Hint  in  the  eounticM  nbovu  named  durim,'  the  Inst 
twelve  months,  not  less  than  one  hnmlred  persons  '  In  the  jicace  of  (Jod  and 
the  Slate,"  have  heeii  taken  from  iheir  homes  and  sciiiirired,  mainly,  if  nut 
entirely,  on  aceounl  of  their  |ii)litical  opinions;  thai  eif,'lit  murders  havu 
been  cdinmitted,  ineludint;  that  of  a  State  senator,  on  the  same  accoinit  ; 
that  anotluir  State  seinitor  Ini8  been  compellud  from  fear  for  hist  life  to 
malce  his  escape  to  a  distant  State?.  I  have  reason  to  believe  that  llio 
^riivernmeiils  of  the  said  comities  have  been  mainly,  if  not  entirely  in  the 
blinds  of  the  mi'li  who  beloie^  to  the  Kn-kinx  Klan,  whose  memliers  liave 
jicrpetratcd  the  atrocities  refiMTcd  to  ;  and  that  these  county  governments 
li;ive  not  merely  omitted  to  ferret  out  and  briiii;  to  justice  those  of  this 
Klan.  who  have  thus  violated  the  law,  but  that  they  have  actually  shielded 
them  from  arrest  and  punishment.  The  .State  judicial  jiower  in  the  s.'iid 
counties,  iliouL;h  in  the  hands  of  ener;,'etic,  learned  and  ui)ri;,'ht  m(!n,  has 
not  been  able  to  briie,'  criminals  to  justice  ;  indeed  it  is  my  opinion,  based 
on  facts  that  have  come  to  my  knowledi;e,  that  the  life  of  the  jud;.'e  whose 
duty  it  is  to  ride  the  circuit  to  which  the  said  counties  belonj;,  has  not 
been  safe,  on  account  of  the  hatred  entertained  towards  him  by  the  Klan 
referred  to,  because  of  liis  wish  and  purpose  to  brin;;  said  criminals  to 
juslice.  Tor,  be  it  known  to  your  Honor,  that  there  is  a  wide  spread  and 
formidable  secret  orLrani/.ation  in  this  State,  (lartly  political  and  partly 
social  in  its  objects  ;  that  this  ori^anization  is  known,  lirst,  as  '  Tlie  Cidi.iU- 
tntiinud  Vuinn  Guard';  secondly,  as  '  The  While  llrntherhnii<l' ;  thirdly,  ns 
'The  Iiivinihle  Ktujiire''  —  that  the  members  of  this  organization  are 
united  by  oalhs  which  ignore  or  repudiate  the  ordinary  oaths  or  oIili>;ati(iiis 
that  rest  upon  all  other  citizens  to  respect  the  laws  and  to  uphold  the 
government  ;  that  these  oaths  inculcate  hatred  between  the  two  vaces  that 
inhabit  this  State  ;  that  the  members  of  this  Klan  are  irreconcilably  liostile 
to  the  great  princijiles  of  jiolitical  and  civil  equality  on  which  the  Rovern- 
ment  of  this  Stale  h.as  been  reconstructed  ;  that  these  Klaus  meet  in 
secret,  in  di.sguise,  with  arms,  in  uniform  of  a  certain  kind  intended  to 
conceal  their  persons  and  their  horses,  and  to  terrify  those  whom  they 
assault,  or  among  whom  they  move  ;  that  they  hold  their  camps  in  secret 
places,  and  decree  judgment  against  their  iieaceable  fellow-citizens,  from 
mere  intimidation  to  scourging,  mutilations  and  murder,  and  that  certain 
persons  of  the  Klan  are  deputed  to  execute  these  judgments  ;  that  when 
the  members  of  this  Klan  are  arrested  for  violations  of  law,  it  is  most 
difilcult  to  obtain  bills  of  indictment  against  them,  and  still  more  ditticult 


074 


STATK    IMT'EACHilENT   TRTALS. 


[ai>p. 


Id  cimvicl  llipin  ;  first,  liccijusc  some  of  the  members,  or  their  sympiitliiz- 
ers.  are  almost  always  on  the  grand  and  petit  juries,  and  secondly,  because 
witnesses  who  are  members  or  symi)athizers  unblushingly  commit  perjury 
to  screen  their  confederates  and  associates  in  crime  ;  that  this  Klan  thus 
const iluted,  and  having  in  view  the  objects  referred  to,  is  very  powerful 
in  at  least  twenty-live  counties  of  the  State,  and  has  had  absolute  control, 
for  the  last  twelve  months,  of  the  counties  of  Alamance  and  Caswell. 

*•  Under  these  circumstances  I  would  have  been  recreant  to  diity  and 
faithless  to  my  oath,  if  1  had  not  exercised  the  power  in  the  said  counties 
wliich  your  honor  has  been  jdeased  to  say  I  have  exercised  constitution- 
ally and  lawfully;  especially  as  sinc('  October,  1(<(!S,  I  have  repeatcilly,  by 
proclamation  and  by  letters,  invoked  public  opinion  to  repress  these  evils, 
and  warn  crindnals  and  olTenders  against  the  law  of  the  State  that  must  in 
the  end  overtake  them  if  under  the  cloak  of  the  Klan  referred  to,  they 
should  persist  in  their  course.  I  beg  to  assure  your  honor  tliiit  no  one 
subscribes  more  tli()roU'.;bly  than  1  do  to  the  great  principles  of  habeas 
corpus  and  trial  by  jury.  Kxcept  in  extreme  cases  in  which,  beyond  all 
question,  '  tlu^  safety  of  the  State  is  the  supreme  law,'  these  privileges  of 
habeas  eori)us  and  trial  by  jury  should  be  maintained.  T  have  declared 
that,  in  my  judgment,  your  Honor  and  all  the  other  civil  and  judicial 
authorities  are  unable  ((/  Ihi.t  tinn'  to  deal  with  the  iii.'oii-iieiits.  The  civil 
and  the  military  are  alike  constitutional  powers;  the  civil  to  protect  life  and 
property  when  it  can,  the  military  only  when  the  civil  has  faileil.  As  the 
chief  executive  I  seek  to  execute,  not  to  sulivert,  the  judicial  jiower.  Your 
honor  has  do;ie  your  duty,  and  in  perfect  harmony  with  you  I  seek  to  ,lo 
mine.  It  is  not  I,  nor  the  military  power,  that  has  supplanted  the  civil 
authority;  that  has  been  don<'  by  the  insurrection  in  the  counties  referred 
to.  I  do  not  see  how  1  can  restore  the  civil  authoritj'  until  1  •  suppress  the 
insurreclion,'  which  your  honor  declares  1  have  thi^  power  to  do;  and  I  do 
not  see  liow  I  can  surrender  the  insurgents  to  the  civil  authority  until  that 
aulbiirity  is  restored.  It  would  be  a  mockery  in  nu'  to  declare  that  the 
civil  authority  was  mudtle  to  protect  tin;  citizens  against  the  insurgents 
and  then  turn  the  insurgents  over  to  the  civil  authority.  My  oath  tr)  sup- 
])ort  the  constitution  makes  it  imperative  on  me  to  '  suppress  the  iusiu'ree- 
lioii,"  and  restor<'  the  civil  i)ower  in  the  counties  referred  to.  and  this  I 
must  do.  Ill  doing  this  I  renew  to  your  honor  expressions  of  my  prol'ouud 
respect  lor  the  civil  authority,  and  my  earnest  wish  that  this  authority 
may  soon  be  reslore<l  to  every  county  and  neighborhood  in  the  Stcto.  1 
have  the  honor  to  be,  with  great  respect,  your  obedient  servant, 

\y.  \V.  IIOIiDEX,  Governor." 

On  .Inly  27th  the  counsel  for  ihe  petitioners  moved:  '•  I.  For  an  iit- 
tacdiiuent,  or  rule  to  show  cause,  against  the  governor  for  not  niaiiing  a 
siillicient  return  to  the  writ  of  habeas  corpus  ;  2.  If  that  be  not  proper, 
tiiou  for  a  like  attachment  or  rule  against  (ieorge  AV.  Kirk  ;  3.  That  the 


ATI'.] 


NORTH  CAuni-rxA. 


07,= 


ir> 


iniii'slml  of  the  Supremo  Court  hv  directed  to  proceed  iu  tlie  execution 
of  the  writ  directed  to  him.  to  lirinij;  the  body  of  the  [irisouer  lieforo 
him."     The  chief-justice  denied  all  three  motions.''* 

'I'lie  prisoners  thereupon  iippliod  to.Tudf;e  Hrooks,  of  the  District  Court 
of  tile  I  iiited  Stiites,  who  granted  the  writ.  Tlie  governor  directed  Col- 
onel Kirii  to  refuse  to  obey  tlie  writ,  and  telegraphed  to  President  (J  rant 
stating  this,  and  that  it  was  his  purpose  to  detain  the  prisoners,  unless 
the  army  of  the  I'nited  States,  under  the  orders  of  the  President,  should 
a<^t  in  aid  of  the  process  of  the  Court  of  the  I'nited  States.  Tin;  secre- 
tary of  war.  General  lielknap,  answered,  forwarding  an  <)i)iiiion  from 
Attornev-Gcneral  Ackerman,  advising  •'  that  the  State  authorities  yield 


to  the  United  States  jiidic 


Judge  Hrooks  entered  an  order  dis 


iMiarging  the  petitioners.     Pending  the  proceedings  before  tlie  Federal 
iiidire  anil  tifter  he  had  received  the  letter  from  the  secretarv  of  war. 


th. 


iovernor  or< 


lered  Colonel  Kirk  to 


'V  the  writs  of  habeas  corpus 


issue<l  liy  the  cliief-iu>tice  of  North  Carolina.  When  the  return  was 
tiled,  the  counsel  for  the  petitioners  tiled  a  slateiiient  in  which,  •'  deciniug 
tlicmselves  without  remedy  from  the  judiciary  of  the  State,  and  having 
olitained  writs  of  hal)eas  corpus  from  Hon.  Ci.  W.  Hrooks,  judge  of  the 
District  Court  of  the  I'nited  States  for  the  district  of  North  Carolina, 
retiiriialile  before  him  at  chambers,  in  Salisbury,  this  day.  as  counsel 
for  the  said  jirisoners."  they  re(picste<l  leave  to  witlidraw  tlieir  petitions 
and  !;oandon  fun  her  proceedings  under  the  .State  writs.     The  chief-jus- 


tici^  ailowi 


attornev-irener; 


d  til'  lirisoners  to  withdraw  their   ;ip|ilic:itions 


Tl 


nticipating  the  course    that  would 


tak: 


le  Slate 
on   the 


part  of  the  prisoners,  had  a])plied  for  and  obtained  a  bench  warrant 
against  tliein.  Tlic  chief-justice  granted  this,  and  ilirected  that  they 
be  held,  lU'ovidcd  the  State  was  able  to  prove  proper  cause  against 
them,  ';'X|)ressing  the  opinion,  which  was  jirobably  correct,  that  .ludge 
Hrooks  had  no  jur'sdiction  in  the  m.'ilter." 

Ill  ordei'  to  prevent  the  governor  from  obtaining   funds  to  jirosecute 
the  new  ('ivil  war.  an   iiijiiiietion  was  granted  by  the  Superior  Court  of 

■iiiit  of  a   tax-payer,  forliidding  the   S|:ite 


the  coiiiilv  of  Iredf 


at  the 


treasurer  from  paying  him  any  sums  of  money  for  that  ])ui'pose,  and  for- 
bidding the  paviiiaster  from  spending  for  that  piii|Mise  any  money  which 
he  had  received  from  th"  treasurer,  and  was  then  in  his  hands.     'J'lie  in- 


"  Ex  purl,-  Moore,  CI  N.  ('.,  HO'2,  81.->; 
Krimrlc  Ki>rr,  lit  N.C,  HIT,. 

■■•■'Sliile  V.  Wiley,  .'il!  N.  ('.,  H21 : 
Stale  V.  Tiirpley,  f.l  N.  ('.,  H'iC,  H'.iO. 
The  opinion  in  llic>  latter  case  ('(iii- 
I'huleil  with  u  seulouco  sigiillloaut  of 


llie  limes:  "WeUiinliil  proper  to  ndil 
tliiit  (ienenil  Hunt,  eoiumiinilinj^  tlie 
V.  S.  tro()])8  In  this  Stale,  wiis  liivlied 
by  118  to  take  a  seal  on  the  lieiicli  and 
hoard  the  whole  proceedings." 


(mG 


STATK    nirKACIIMENT    TKIALS. 


[A1'1>, 


jiiiK'tioiis  wore  servi'd  upon  the  jjovuriKjr,  tiTa.iU;vi',  iiiul  payiimstei'.  In 
Older  to  i-iiciiiiiveiit  the  injinu'tion,  the  governor  renioveil  tlie  paymas- 
ter, iinil  appointed  in  his  jihiee  liis  own  private  seeretary,  who  eolleeteil 
the  money  from  tlie  treasinx-r  and  paid  tlie  troops. 

Governor  Ilolden  was  inijieaehed  hy  tlie  house  of  representatives  in 
December,  1870.      His  trial  before  the  senate  took  plaee  in  1x71. 

The  articles  charged  tlu^  res|iondent  with  uiiscomluct  in  proclaiming 
the  counties  of  Alamance  and  Caswell  in  insurrection,  and  with  occupy- 
ing the  same  hy  military  force.  The  respondent  was  ae(|uitted  as  to 
these  articles,  since  the  vote  of  guilty  lacked  two  or  three  votes  of  the 
constitutional  two-thirds.  He  was  convicted  upon  the  remaining  arti- 
cles, charging  him  with  niilawfnl  arrests  in  a  county  which  he  had  not 
proclaimed  to  lie  in  insurrection  ;  with  unlawful  arrests  and  imiirison- 
iiients  in  the  proclaimed  counties  ;  with  refusal  to  obey  the  writs  of  ha- 
beas corpus  ;  with  indawfnl  conduct  in  sending  into  tin-  proclaimed  coun- 
ties troops,  some  of  whom  were  brought  from  another  State,  and  con- 
sisted "of  the  most  reckless,  desperate  rulllans  and  lawless  characters," 
"  under  the  chief  command  of  a  desperado  from  the  State  <jf  Tennes- 
see by  the  name  of  George  W.  Kirk"  ;  with  unlawful  acts  committed  by 
Kirk  under  his  authority;  with  uidawful  i)aynientsof  sums  of  money  for 
that  pur|)ose  ;  and  with  his  acts  in  circumvention  and  in  violation  of  the 
iiijiniction  as  above  described.  The  sentence  imposed  was  removal  from 
olllce  and  disciiialilication  to  '.lold  any  ollice  of  honor,  trust  or  profit  un- 
tler  the  State."' 

The  trial  is  interesting  from  the  evidence  which  it  contains  concern- 
ing the  rules  and  operations  of  the  Ku-kliix  Klan.  The  pi'oceedings, 
over  which  Chief-.lustiee  Pearson  presided  were  dignilied  and  conducted 
with  ajiparent  viipartiaiity.  The  only  exception  in  this  respect  is  a  cheap 
and  vulgar  opinion  by  one  of  the  senators.  The  main  acts  for  which 
lliildrn  was  convicted  were  simil.ar  to  those  of  President  Lincoln  at  the 
opening  of  the  Civil  War. 

In  the  same  State,  on  March  27th,  1H71.  the  house  of  reiirescnta- 
tives  impeached  .ludge  Hdmuiid  AV.  Jones,  of  the  supi'iior  court  of  the 
second  judicial  distrii't.  for  drunkenness  in  public  places.  On  .March 
.'^Ist,  Governor  (.'aldwell  inforiiied  the  house  that  the  respondent  had 
tendered  his  resignation,  but  that  "  this  resignation  would  not  lie  ac- 
ce])ted  until  the  iirtides  of  iuipeachnient  were  disjiosed  of."    'J"ho  house 


61'  Trial  ol'  Williaiii  W.  IIolili'ii,  (Jov- 
eriior  of  North  CaioliiiH.  Iiefori'  the 
Soiialo  of  North  Carolinii,  on  "Iiii- 
pi'acliniont  liy  the  House  of  Ki-presen- 
tiitlves  for  High  Crimes  iiiul  Jlisde- 


inoaiioi's."  Thror' viilunioa,  nuiuliored 
eOMSiM'iUively,  iit-'urcKiitepii.  '2.5(i-l :  vol. 
i,  1-10;(7;  vol.  11.  ])i).  lODl) -2'2lin :  vol. 
Ill,  ]ip.  2271-25(;t.  Two  A|>p(,n<llxc8, 
Ni).  1,  pp.  1-108;  No.  2,  jip.  1-S8. 


AIM'.] 


GEORGIA. 


077 


thereupon  resolved  that  tlie  artielcs  of  impeaehment  l)e  witlidrawn.  and 
that  tlie  nianafiers  so  inform  the  senate  and  ri'tpicst  their  return.  The 
si'iiate  ordered  that  tlie  house  '•  may  discontinue  the  furtlier  [irosecu- 
tion  of  tile  inipeaelinient,"  and  adjourned  the  court  of  impeachment 
without  a  day." 

GEOUGIA. 

In  1701,  Judge  Henry  Osborne  of  the  Superior  Court  of  Camden 
County,  was  impeached  l>y  the  assendily  and  convicted  by  the  senate  of 
the  State  of  (ieorf^ia  upon  six  articles,  which  charged  the  faisilication 
of  returns  upon  an  election  to  Congress  in  favor  of  (ieneral  "  Mad  An- 
thony "  Wayne,  whose  competitor.  General  James  Jackson,  was  seated 
by  the  House  of  Representatives.  He  was  sentenced  to  removal,  dis- 
qualification for  thirty  years,  and  a  line  of  six  hundred  dollars  to  defray 
the  expenses  of  the  iuipeaehn.ent.'*''  Apparently  for  his  sole  benelit, 
the  following  clause  was  inserted  in  the  Georgia  constitution  of  17'.I8  : 
"  Convictions  on  impeachments  which  have  heretofore  taken  place  are 
hereby  released,  and  persons  lying  untler  convictions,  restored  to  citi- 
zenship." ^^ 

In  \H->'i,  Jolin  J^oving,  Samuel  Jackson,  and  Fleming  F.  Adrian, 
connnissioners  of  fraction  sales,  were  impeached  and  tried  before  the 
Georgia  senate.  The  articles  charged:  the  retention  and  keeping  of 
moneys  collected  by  them  as  cash  paynu'Uts  for  sales  of  the  fractional 
parts  of  surveys ;  the  withholding  of  a  large  nund)er  of  grants  which 
had  bi'en  finnished  tliem  by  the  Static  so  that  they  might  execute  com- 
plete titles  to  the  purchasers  of  said  fractional  surveys:  the  interlinea- 
tion and  nmtilalion  of  a  bond  executed  by  a  purchaser  so  as  to  increase 
the  amount  for  which  he  was  bound  ;  and,  generally  that  by  the  pro- 
ceeding ami  conduct  set  forth  in  the  foregoing  articles,  contr:,ry  to  the 
high  and  important  trust  confided  to  them  as  commissioners  aforesaid, 
and  the  sacred  oath  by  them  respectively  t;d<en,  they  had  for  the  sake 
of  lucre  and  gain  and  their  own  personal  aggrandizeineiit,  been  dis- 
gracefully instniinental  in  establishing  a  precedent  subversive  of  the 
good  faith  whiili  ought  to  be  found  in  the  actings  and  doings  of  all 
persons  to  whom  the  great  concerns  of  the  State  and  the  interest  of 
the  good  citizens  thereof  might  thereafter  be  confided. 

John  Loving  was  acquitted,  the  vote  upon  several  of  the  articles  being 


"  Appleton's  Annunl  Eneyi'lopieiUa 
for  1K71,  y.  SCil.  See  iiIbo  legislative 
journiilH. 

'■"  Tills  ensn  is  only  reported  In  the 
leylsliUivo  journals.    See  also  Georgia 


SliscoUnny,  vol.  Ill,  p.  12.  For  lll^^ 
iiitonnatlou  eoneorninB  It  the  author 
Is  liicli'lited  to  the  ('(miiesy  of  A.  L. 
Alexander,  Es(i.,  of  the  .Savannah  bar. 

69  ArtielelV,  See.  8. 


G78 


STATi:    I.Ml'EACHMENT   TlilALS. 


[aI'1', 


a  Jiiajority  of  less  tliaii  two-thirds  agsiinst  him.  Tliercupon  iit  tlio  re- 
qiu'st  of  tiie  lioiise  of  ivpreseutativi's  the  manufiers  asked  leave  of  the 
court  to  enter  a  woWo  prosequi  on  tlie  iirtieh^H  of  iuipcaehnieut  against 
the  other  responcUMils,  whieli  was  granted. ™ 

111  tiie  same  State,  in  1879,  AVasliiufiton  L.  (ioldsuiith,  the  comp- 
troller-general, and  .loini  W.  Keufroe,  the  State  treasurer,  were  impeached 
and  tried  liefore  the  senate.  The  artieies  against  tiie  eomptroller-gcn- 
eral  charged;  the  collection  of  illegal  fees  as  costs  upon  writs  oi  fieri 
/(iiiiia  issued  by  him  for  taxes  on  wild  land;  the  illegal  payment  of  the 
proceeds  of  tax-sales  of  wild  land  to  various  persons  without  the  sanc- 
tion and  warrant  of  tlie  governor  as  was  re(inired  bylaw;  tiie  illegal 
delegation  to  the  siieritTs  of  the  power  and  duty  to  pass  upon  tlic  evi- 
dence of  title  to  uureturned  wild  land  sold  by  tiicm  for  taxes  when 
the  owners  elected  to  receive  tlie  balance  of  the  ))roceeds  of  the  sale; 
the  failure  to  jiay  to  the  treasurer  sums  of  money  received  liy  liim  for 
taxes  and  costs ;  making  erroneous,  false  and  fraudulent  returns  and 
reports  concerning  the  money  collected  by  him  for  taxes  on  wild  lauds 
and  insurance  taxes;  retaining  money  collected  as  insurance  taxes  and 
fees  which  belonged  to  the  State  ;  procuring  and  permitting  to  bo  altered 
and  falsified  the  record  in  his  ollice  of  ])ublished  lists  of  wild  lands  uu- 
returned ;  keeping  in  his  ollice  a  clerk  who  lie  knew  had  made  a  wrong- 
ful and  fraudulent  entry  in  such  book  ;  appropriating  monej-s  belonging 
to  tlie  State  to  his  own  use;  the  olTer  of  a  bribe  of  two  hundred  and 
fifty  dollars  and  '  suit  of  clothes  to  members  of  a  joint  coinmittee  of  the 
legislature  which  lad  been  apjiointed  to  investigate  liis  odice  ;  employing 
a  lobliyist  to  cor  apt  tiieui ;  and  tinally  that  he  had  for  the  sake  of  lucre 
and  gain  and  iiis  own  personal  aggrandizement,  been  disgracefully  in- 
struinental  in  establisliing  a  i)recedeiit  subversive  of  the  good  faitli  which 
ought  to  be  found  in  tlie  actings  and  doings  of  all  persons  to  whom  the 
great  concerns  of  the  State  and  the  good  citizens  thereof  might  thereafter 
be  coufulel. 

The  respondent  answered  at  length;  and  included  in  his  answer 
demurreis  to  several  of  the  articles  as  not  constituting  impeachable 
offenses.  The  demurrer  to  the  article  which  charged  that  the  respondent 
had  made  false  and  fraudulent  returns  of  the  moneys  belonging  to  the 
State  in  his  possession  as  the  proceeds  of  the  collection  of  taxes  on  wild 


•0  Minutes  of  the  Hljjh  Court  of 
ImpeachniPUt  of  the  Slato  of  Georgia, 
for  the  trial  of  .lohii  liOviiin,  Samuel 
Jackson,  and  Fleming  F.  Adrian,  com- 
luissioners  of  fraetioQ  sales,  impeached 


by  the  House  of  Eepresentatlves,  and 
ehaifred  with  eurtniu  high  crimes  and 
miBdemi'iiuors  against  llio  Hiato. 
MillodgeviUe:  printed  by  Camak  & 
Uuglaud.     1825.    pp.  127. 


APP.] 


FLOUIDA. 


679 


lands  W118  suHtaiued,  apparcutly  on  the  trround  Ibat  the  rcspoiuU'iit  liad 
a  legal  right  to  the  iiionej'  which  he  retained  and  did  not  report.  Siioh 
demurrers  as  were  filed  to  the  other  articles  were  overruled,  in  nearly 
every  case  unaniniouslj'. 

The  senate  permitted  evidence  of  offenses  charjied  in  the  articles 
which  were  connnittcd  dm-ing  a  term  of  the  same  olllce  immediately 
preeedini;  that  then  held  liy  the  respondent.  The  respondent  was  con- 
victed of  the  articles  which  charged  the  illegal  collection  of  costs  on  the 
issue  of  writs  of _/(Vrt_/(((7'a.s,-  the  iilejiiil  collection  of  insurance  taxes 
iind  fees;  making  false  reports  concerning  public  money  collected  by 
him  in  which  lie  understated  the  amount  of  insurance  taxes  collected; 
:i[ipii)prialing  to  his  own  use,  money  collected  for  insurance  taxes  and 
fees  as  aforesiiid;  and  also  on  the  final  article.  lie  was  sentenced  to 
removal  and  perpetual  discpialification  from  oillce."' 

The  State  treasurer,  .loim  W.  Kenfroe,  was  imi)eached,  tried  and 
acquitted  hy  a  minority  vote  of  more  than  one-tliird  in  iiis  favor  during 
the  same  year. 

The  articles  charged  that  he  had  corruptly  and  illegally  received  from 
banks  connnissions  in  return  for  the  deposit  with  them  of  State  funds; 
that  he  had  made  an  arrangement  with  the  sureties  who  signed  his 
oflicial  bond  that  tlie  funds  should  be  deposited  in  certain  banks,  wiio 
paid  a  commission  for  such  deposit,  which  was  divided  between  the 
treasmvr  and  the  sureties  ;  that  he  had  extorted  illegal  fees  from  a  rail- 
road company  for  allixing  liis  signatiu'c  to  coupons  npon  its  bonds; 
that  he  liad  corruptly  proposed  to  tiie  president  of  a  bank  tliat  he  would 
depi)sit  Stale  funds  in  such  bank  in  consideration  of  an  appointment  to 
a  position  in  tiie  ban!:  of  a  person  whom  he  mimed ;  and  finally  that  he 
had  for  tlie  sake  of  lucre  and  gain  ami  iiis  personal  aggrandizement, 
been  disgracefully  instrumental  in  establishing  a  precedent  subversive 
of  the  good  faith  which  ought  to  be  found  in  the  actings  and  doings  of 
all  persons  to  wiioin  tiie  great  concerns  of  tiie  State,  and  of  the  good 
people  thereof,  might  thereafter  bo  coiilided."" 

FLOKID.\. 

In  Florid',  on  November  fitli.  1H(18,  tiie  house  of  representatives  im- 
peached til  :  governor,  Harrison  Heed.     The  foundations  of  the  impeach- 


11  .loiiriiiil  of  1 1.1-  ''-nnteof  theSlato 
of  (i(!ori;ia  at  (lie  8c>ssion  i...  "  "  '^  •. 
erul  Assemlily,  c'limiiii'iiced  iit  Allanla, 
Ga.,  Nov.  fl,  1H7K.  .\tliiiila,  (ta.  :  Jas. 
P.  Harrison,  Stale  Printer.  1S79.  Ap- 
f  eudix,  jip.  08a-7U8. 


«2  Jininial  of  tlie  Seiiiito  of  (lie  Stato 
of  Tieortiia,  1878.  Allaula,  Ga.  :  .las. 
P.  Harrison,  Slnte  Printer.  187'.).  Ap- 
poudlx,  pp.  71)U-818. 


680 


STATE  nrPKACHMENT  TRIALS. 


[app. 


ment,  presented  to  the  house  by  a  senator,  who  it  was  claimed  was 
disqualified  to  hold  his  seat,  were  as  follows  :  — 

'•  1.  He  has  been  guilty  of  falsehood,  and  lying,  while  transacting 
busint'.ss  with  nienil)ers  of  the  Legislature  and  otiier  otticers  of  tiie  State. 

"2.  1  ciiargo  him  witli  inconiijetency,  iniisiniich  as  lie  has  fdlcd  com- 
missions to  ollicers  in  blaulv,  and  otlier  irresponsil)le  peruons  have 
issued  tiiem. 

"  3.  He  lias  issued  a  proclamation  declaring  many  setits  of  the  Legis- 
lature vacant,  before  the  members  duly  elected  and  returned  liad  re- 
signed or  their  legal  term  of  service  expired. 

"  4.  He  has  been  guilty  of  embezzlement,  having  taken  from  tlie  State 
Treasury  securities  and  money,  and  sold  such  securities,  and  tlicn  faih;d 
to  return  a  portion  or  all  of  the  proceeds  of  the  sale  to  the  Treasury. 

"  r>.  He  lias  been  guilty  of  corruption  and  I)ril)ery,  iiaving  tiartered 
and  sold  prominent  otiicos  in  tlie  Stati!  to  sundry  persons  for  money  to  iilm 
in  liand  paid,  and  nominated  sncli  persons  to  the  Senate  for  conlirmation." 

On  the  same  day  a  committee  presented  tiie  imi)eachment  at  tlie  bar 
of  tlie  State  senate  in  tlio  presence  of  eight  senators  ;  twenty-fom-  being 
tiie  entire  mimlier  of  the  senate  wiien  full,  but  several  elected  lieing  dis- 
qualified ))y  tlie  acceptance  of  inconsistent  ofllces,  and  vacancies  existing 
also  through  resignations,  so  that  eight  was  a  majority  of  the  number  of 
senators  in  otiice.  liy  the  State  constitution,"^  on  the  impeachment 
of  the  governor,  lie  was  suspended  from  ollice  till  the  end  of  the  trial. 
That  same  evening  the  lieutenant-governor,  William  H.  (ileason,  issued 
a  proclamation  stating  that  he  had  taken  possession  of  the  odice  of 
governor.  On  the  following  day  the  assembly  adjourned  to  the  first 
3[onday  of  January,  !«(;!),  and  as  the  senate  refused  to  concur  in  the 
adjournment,  the  lieutenant-governor  sent  in  a  message  as  acting 
governor  adjourning  tiotli  houses  to  that  day.  Jleaiiwliile  fioveriior 
Keed  refused  to  surrender  possession  of  his  odice,  and  requested  the 
opinion  of  the  State  Supreme  Court  on  the  question  whether  a  quorum  of 
the  senate  had  been  present  when  the  inipeaclimeiit  was  presented,  and 
wliether  the  proceedings  had  the  cfTect  of  suspending  liiiii  from  ollice. 
The  lieutenant-governor  wrote  tlie  court  cluiming  that  it  oiiglit  not  to 
give  a  legal  opinion  nixm  the  questions  which  were  within  the  exclusive 
jurisdiction  of  the  senate  and  assembly.  The  court  held  unanimously 
tiiat  no  quoniiii  of  the  senate  was  pi\  (^nt  when  the  impeachment  was 
])resented,  and  that  conse(iuently  (Jovernor  Heed  had  not  been  sus- 
pended from  oillce."''     In  December,  18(>H,  the  Supreme  Court  upon  an 


«^  Constitution  of  1865,  Artiolc  III, 
Sec.  lil. 

M  In  the  Matter  of  tlio  Executive 


Commniiic.ition  of  the  !)tli  of  Novem- 
ber, A.  D.  18(i«,  12  Florida,  653. 


AIM'.] 


MISSISSITPI. 


081 


iiifonnation  in  the  nature  of  a  qun  warranto  entered  judgment  removing 
tlu>  lieiitenant-govornor  from  otilce  for  ineligihiiitv  ;  "^  but  he  obtained  a 
writ  of  error  and  nupersedeax  from  the  Supreme  Court  of  tlie  United 
States,  wiiich  ivO])t  liim  in  olllce  a  wiiile  longer.  Wlien  tlie  legislature 
reassembled  in  January,  ISOK,  the  vaeaneies  had  been  filled  by  intervening 
eleetions,  both  houses  recognized  (iovernor  lieed  as  still  in  office,  and 
the  impeachment  was  abandoned. °° 

ALABAMA. 

In  187G,  an  information  was  filed  by  the  State  attorney-general  in  the 
supreme  court  of  Alabama  for  the  removal  of  Charles  W.  Buckley, 
probate  judge  of  Jlontgomery  Count}',  for  corruption  and  misconduct 
in  odice,  with  specifications  of  the  unlawful  purchase  of  and  dealing 
in  county  claims,  a  conspiracy  to  procure  a  contract  for  the  support 
of  the  poor  for  his  fellow  conspirator,  who  was  not  the  lowest  l)idder,  and 
the  appointment  of  a  guardian  <nl  litem  with  a  corrupt  understanding 
and  agreement  that  the  guardian  should  share  his  fees  witii  tlie  judge. 
The  proceeding  was  founded  upon  a  constitutional  provision  whicli  gave 
the  court  jurisdiction  of  such  cases  "  under  sucii  regulations  as  may  be 
prescribed  by  law,""  and  a  statute  which  authorized  depositions  to  be 
put  in  evidence.  The  court  liehl  that  that  part  of  the  statute  was  ini- 
constitution;>l ;  that  without  them  there  was  no  law  prescribing  the  mode 
of  trial ;  and  that  consequently  it  had  no  jurisdiction.*' 

Mississirpi. 

In  1808.  the  legislature  of  the  ^lississippi  Territory  directed  the 
Territorial  deh'gate  to  impeach  in  Congress,  Peter  B.  Bruin,  tin;  ])re- 
siding  judge  of  the  Territory,  for  drunkenness  on  the  bench  and 
neglect  of  duty.  Tlie  delegate,  f  Jeorge  Poindexter.  after  tlie  resolutions 
were  read,  obtained  the  appointment  of  a  committee  to  investigate  the 
charges,  liut  no  report  seems  to  have  been  made."" 


«'  Tho  Stiiti'  of  Florida  in  the  Ri-lii- 
tlon  of  the  At  toriK'y-tii'iK'nil  v.  William 
H.  aii'iison,  12  Florida,  1!I0. 

80  Appleton's  Annual  EiicjclopEpdia 
for  IHfiM,  lip.  273  27(1. 

"  Alabama  t'linstllution,  Art.  VII, 
Sec.  3. 

0'  Tho  State  c.c  ret,  Attorney-Gen- 
eral V.  Buckley,  r)4  Ala.  599. 

"  American  State  I'npers,  vol.  xx, 
pp.  921,  922;  House  Journal,  Tenth 


Cimjf.,  First  Sess.,  pp.  50.1,  5G2,  589, 
(108.  Ill  IKV.),  the  House  Committee 
on  the  Judieiary  reported  their  opin- 
ion that  II  territorial  judge  was  not 
an  oHleer  of  the  United  States  and  so 
eould  not  li<<  impeached  (Hoiiso  Re- 
jioris,  22(1  CongresB,  2d  Sess.,  No.  88). 
lu  1HH9,  Felix  Grundy,  tho  Attoiney- 
(ieiieral,  (^avo  a  similar  opinion  (Ex. 
Doe.,  25th  ConR.,  3d  Sess.,  vol.  Iv, 
No.   154).     For  those   references  tho 


682 


STATE  IMl'EACHMENT   TIJIALS. 


[Al'l'. 


Ill  187(1,  Aik'Uiert  Ames,  governor  of  Mmsiasippi,  was  iiiipeiichcd 
uiul  tried  lu'fore  tlic  Stiite  suiiiite.  The  articles  cliai-gecl  a  failure  and 
refusal  to  t'oniply  with  the  request  of  the  county  treasurer  to  suspend  a 
sheriff  aud  tax  eolle'jtor  who  liad  failed  aud  refused  to  make  iiioiUhly 
ri'|K)rt8  and  payments  of  the  taxes  collected  ;  the  appointment  of  justices 
of  the  peace  aud  constables  for  partisan  purposes  ;  the  approval  of  an 
olllcial  bond  filed  by  the  State  treasurer,  which  was  defective  in  form 
and  signed  by  iusulllcient  sureties  ;  permitting  the  State  treasurer  to  n>- 
liiiiiu  in  ollice  and  in  iiossession  of  the  treasury  after  the  State  attorney- 
general  had  notilied  the  governor  that  the  bond  was  insudieient ;  insti- 
gating and  directing  a  forcible  removal  of  a  sheriff  l)y  soldiers  of  tlie 
I 'nited  States ;  defrauding  the  State  of  §33,750  l)y  granting  contracts 
to  personal  and  partisan  favorites  for  convict  labor  without  any  fair  and 
ojjcn  competition  or  public  bidding,  and  at  less  than  other  persons  would 
have  paid  for  the  same ;  conspiring  to  slander  and  liliel  a  citizen  of  the 
State  in  order  to  prevent  his  appointment  to  the  ofllce  of  district  attorney 
of  the  United  States ;  permitting,  conniving  at  anil  assisting  in  an  ex- 
change of  ollices  between  a  diancellor  and  a  district  attorney  ;  neglect- 
ing and  refusing  to  nominate  diancellors  to  the  senate  while  in  session, 
and  appointing  them  in  vacation,  with  tliirteen  specifications  of  sucli 
offenses ;  endeavoring  to  persuade  the  chief-justice  to  interfere  with, 
direct  and  control  the  judicial  action  of  the  hitter's  son,  who  was  then 
a  chancellor  in  a  certain  cause ;  when  he  failed  in  this,  arbitrarily  and 
corruptly  removing  the  said  chancellor,  and  failing  to  report  to  the  sen- 
ate at  its  next  succeeding  session  his  appointment,  in  the  recess,  whicii 
consequently  lapsed;  unlawfully  removing  three  other  chancellors;  aj)- 
pointing  to  the  olHce  of  chancellor  in  six  specified  cases  men  who  were 
notoriously  incompetent,  immoral  and  dishonest,  of  whom  one  had  been 
publicly  charged  with  forgery,  and  two  others,  one  a  physician,  had 
never  practiced  law  and  had  been  admitted  to  the  bar  only  a  few  days 
prior  to  their  apjiointment,  with  the  understanding  that  they  should  re- 
ceive their  appointment  upon  admission;  inciting  a  riot  and  conflict 
of  arms  between  the  whites  and  l)lack8  in  a  certain  county,  by  calling 
out  a  company  of  black  militia  in  the  charge  of  dangerous,  turbulent 
and  obnoxious  officers,  causing  them  to  march  and  parade  with  the 
purpose  of  thus  provoking  bloodshed ;  making  intemperate  and  in- 
flammatory speeches  with  a  design  to  bring  out  an  armed  conflict  between 
the  white  and  colored  citizens  of  tlie  State,  in  whicli  he  said  amongst 
other  things  :  "  1  and  other  white  men  have  faced  the  bullets  to  free  the 


authoi  is  Indebted  to  the  pourtesy  of 
Melville  E.  Ingalls,  Jr.,  £»[.,  of  the 
New  York  bar,  who  has  made  un  ex- 


haustiyo  study  of  the  Bubject  of  Ameri- 
can Impeachmeiite. 


AI'l'.] 


ilISSl.SiSll'1'1. 


(kSS 


t'olijivtl  pecpk',  and  now  if  Ilicy  uir  not  willing'  lo  light  to  iMiiinUiin  \.,i\t 
freeiloni,  tliuy  aro  unwcjrtliv  of  it."  •■  What  if  it  doi's  cost  lilon.'  ;  tliL- 
lihxxl  of  the  niartvr  i.t  tin'  si't'd  of  the  fhui'cli."  '■  Tli:il  very  likely  lil'- 
teen  or  twenty  ncgroi's  may  lie  killed,  but  that  it  would  icsiilt  to  the 
benefit  of  the  Repiibliean  party  "  ;  making  an  intemperatt'  and  inllanmia- 
tory  speech  and  giving  unlawful  advice  to  a  ijorsoii  claiming  the  oflicu 
of  shei'itf,  thus  causing  riot.  Iiloodslu'd  and  death,  through  the  at- 
tempt of  the  claimant  to  take  possession  of  his  olliee  hy  force  of  arms  ; 
in  consideration  of  the  payment  of  three  thousand  dollars  to  a  third 
person,  granting  u  par(U>n  to  a  person  imprisoned  after  conviction  of 
the  crime  of  rape  upon  a  child  ;  ami  grossly,  willfully  an<l  wickedly 
abusing  and  perverting  the  power  and  discretion  of  pardoning  criminals 
by  granting  n  pardon  in  the  last  named  case,  ni)on  a  petition  signed 
by  a  few  of  the  respondent's  personal  friends,  who  did  not  preteni)  to 
any  personal  knowhdge  of  the  facts  and  were  residents  of  a  distant 
part  of  the  State,  which  petition  stated  only  one  substantial  reason  for 
the  pardon,  a  statement  known  by  the  respondent  to  be  false. 

A  few  weeks  after  the  articles  of  impeachment  were  .i(h)pted,  a  mem- 
ber of  the  house  presented  a  letter  from  the  governor  stating  that  on 
account  of  his  embarrassment  by  the  election  of  a  hostile  legislature,  he 
desired  to  'esign  his  olllce,  but  that  he  could  not  and  would  not  retire 
from  the  position  while  the  proceedings  of  impeachment  were  pending 
against  him.  Thereupon  the  .house  adopted  a  resolution  with  a  pre- 
amble referring  to  this  letter  and  a  direction  tliat  the  managers  be  di- 
rected to  dismiss  the  articles  of  impeachment.  The  articles  were  ac- 
cordingly dismisse<l  with  the  consent  of  the  senate.'" 

In  the  same  year,  the  lieutenant-governor,  Alexander  K.  Davis,  was 
impeached,  and  notwithstanding  his  attempted  resignation,  was  convicted 
and  sentenced  to  removiil  from  odice  and  perpetual  disipialification  by  a 
vote  of  thirty-two  to  four  upon  articles  charging  the  sale  of  a  pardon  to 
a  convicted  nnirderer  while  the  governor  was  absent  from  the  State."' 

In  the  same  year,  Thomas  W.  Cardo/.o,  superintendent  of  education, 
was  impeached  on  articles  which  charged  embezzlement  of  the  State 
funds,  and  useless  purchase  of  excessive  supplies  for  the  schools,  receipt 
of  bribes,  making  false  returns  and  knowingly  paying  fraudulent  war- 
rants. Pending  the  proceedings  he  resigned,  whereupon  the  assembly 
abandoned  the  impeachment  and  the  senate  sitting  as  a  court  adjourned 
without  a  dav.'' 


'"The  tPHllriioiiy  U\  the  Impoarli- 
oient  of  Adelbert  Ames,  ns  Governor 
•of  Mississippi.  Index  to  Articles  of 
Impoaeliment,  p.  317 ;  Alpliabetienl 
Index  to  Witnesses,  p.  2,3U.    Jackson, 


Miss:  Power  &  Barksdnle,  State  Prin- 
ters, 1877,  pp.  323.  See  also  Senate 
Journal  by  sanve  pulilishor,  pp.  (i'2. 

"  Senate  Journal  of  Trial,  pp.  133. 

'"  Senate  Journal  of  the  Trial,  pp. 


C84 


STATE  LMl'EACUMEN'T  TRIALS. 


[APP. 


TENNESSEE. 

Thomas  N.  Friizier,  judge  of  the  criiiiiiiul  court  of  Davulson  County, 
was  iiiii>t'iicliccl  bufore  ami  convicted  l)y  tlie  senate  of  tlie  State  of  Ten- 
nessee in  IsCiT.  Tlie  proceedings  grc.v  out  of  the  ratification  of  tiie 
Fourtecntli  Amendment  to  tlie  Constitution  of  tlie  United  States  l)y 
tlie  legislature  of  that  State.  An  attempt  was  made  in  1H(!G  to  block 
the  ratilicalion  by  preventing  a  quorum  of  the  house  of  represen- 
tatives. The  State  constitution  provided  that  "Two-thirds  of  eacli 
House  shall  constitute  a  (luoruin  to  do  business,  but  a  smaller  number 
may  attend  from  tlay  to  day  and  may  be  authorized  by  law  to  compel 
the  attendance  of  absent  members."  Another  clause  provided  that 
'•each  lloust!  iiiiiy  determine  the  rules  of  its  iiroceeiliiigs,  punish  its 
members  for  disorderly  behavior,  and  with  the  concurrence  of  t\vo-tliir<ls, 
expel  a  member,  but  not  a  second  time  for  the  same  offence,  and  shall 
have  all  other  powers  necessary  for  a  liranch  of  the  legislature  of  a  free 
State."  No  act  had  been  passed  expressly  authorizing  a  smalltu'  ninn- 
ber  of  representatives  than  a  (juoniiu  to  compel  the  attendance  of  absent 
members.  The  ruh^s  of  the  former  house  of  representatives  gave  such 
authority.  The  members  of  tlu'  new  house  who  assembled,  although 
less  than  two-thirds,  ordered  llu!  arrest  by  its  sergeant-at-arms  of  two 
of  the  absent  memliers,  who  were  brought  in  by  him  and  held  there  in 
custody.  On  the  day  after  they  were  brought  there,  .Judge  Frazicr 
issued  a  writ  of  habeas  c<jrpiis  commanding  the  sergeant-at-arms  to  bring 
one  of  these  members  licfoie  him  for  examination  as  to  the  reason  of 
their  imprisonment.  The  house  of  representatives  thereupon  resolved 
that  they  denied  the  jurisdiction  of  the  criminal  court  in  the  premises, 
and  its  authority  to  inteifere  with  the  disciiiline  and  regulations  of  the 
house,  and  diieeled  the  sergeant-at-arms  to  continue  under  arrest  all 
members  retained  by  him  under  the  resolution  until  otherwise  ordered 
by  the  house.  The  sergeant-at-arins  obeyed  the  resolution  and  filed  it 
as  his  return.  The  judge  refused  to  accept  the  return,  issued  an  at- 
tachment against  the  scrgeant-at-ai us,  Uiid  him  brought  into  court  by 
the  sheriff  of  the  county,  punished  him  l\v  a  fine  of  ten  dollars  for  cou- 
tempt  of  coui't,  and  ordered  the  sheriff  to  release  the  metnbers  from 
the  custody  of  the  house,  which  he  did.  For  this  Judge  Frazicr  was 
impeached.  The  trial  is  interesting  to  students  of  the  history  of  the 
Reconstruction.  The  facts  were  undisputed,  and  the  only  questions 
were  whether  a  less  number  than  a  (juorum  of  those  elected  to  the  house 


59.    Tli(!  volume  which  contains  the  journals  of  the  three  trials  may  bo  found  ia 
the  Astor  Library. 


AIM'.]  AUKAXHAS.  OSS 

of  ri'iircscntativcs  had  ntitliority  to  coinpi'l  tlic  nttcndiinco  of  iilisciit 
incmlii'rs  wlii'ii  no  statilti'  upon  llu'  sulijccl  li;i(l  prcvioiiHly  Immmi  piisscd, 
and  also  wlii'tlu'i'  Dw  jndifo'H  intent  was  criminal.  He  was  convictui!  !iv  a 
votii  of  11  to  1,  and  sentciu'cd  to  a  removal  from  ollice  and  tlisqiialifica- 
tiou  from  holding  any  ollice  thereafter  in  the;  State  of  Tennessee.''' 


ARK.\NK.\S. 

In  1H71,  Powell  Clayton,  jjovernor  of  the  State  of  Arkansas,  was  im- 
peached liy  the  State  honse  of  roprosentatives.  A  short  time  pi'eviously 
he  had  been  elected  senator  of  the  Tnited  .States.  The  articles  cli:ir>red 
that  he  had  conspired  witli  the  niemhiM's  of  tiie  State  sii|)reine  court  to 
maliciously  an<l  unlawfully  deprive  the  lieutenaut-jroveruor.  .lames  .M. 
Johnson,  of  his  ollice  to  which  he  had  lieen  duly  eU'ctid  and  for  wliicli 
he  had  duly  qualined  ;  that  he  had  unlawfully  removed  a  couuly  and 
probate  juilge  who  had  lieocu  duly  and  cr>ustitutionally  electiMl  ;  that  lu; 
had  directed,  enconra<rcd  and  ai<le(l  in  frauds  in  the  election  of  a  senator 
and  three  representatives  to  the  jieneral  assomlily  of  tlu'  State  :  that  lie 
had  accepted  pecuniary  considerations  for  issniuj:  bonds  or  (iblij;ntii>Ms  of 
the  State,  to  and  in  favor  of  tla;  Memphis  and  I.iltle  Hock  K'ailioad 
Company  and  the  Little  Koek  and  Fort  .Smith  IJailroad  (,'ompaiiy.  in 
litter  violation  of  law  and  disrcfiard  of  his  ollleial  duty;  tiiat  he  had 
issued  bonds  or  obligations  of  the  State,  to  the  Mississiiipi,  Ouaeliita, 
and  Hed  Hiver  liailroad  Company  when  tiiat  company  was  notoriously 
not  entitled  to  the  same  under  the  laws  ;  and  that  he  iiad  been  fruilty 
of  other  misconduct  and  malfeasance  in  ollice,  and  high  crimes  and  mis- 
demeanors. 

At  the  same  time  a  resolution  was  passeil  that  the  respondent  be  sus- 
pended from  exercising  the  functions  of  governor,  and  the  members  of 
the  house  of  representatives  proceeded  by  force  to  lock  hin>  into  the 
executive  chamber  or  nail  the  door  in  order  that  he  might  not  escape 
and  act.  The  governor  notified  the  assembly  on  the  following  day 
that  he  had  been  unollicially  informed  that  the  articles  had  been  ap- 
proved and  a  resolution  of  suspension  jiassed  ;  but  that  he  Inul  been 
advised  by  counsel  that  the  constitution  did  not  confer  the  ])ower  of 
suspension  from  ofHce  on  the    assembly.     The  next  day  a  resolution 


■'  ProeoeilinRs  of  the  Hi^li  Court  of 
ImiH>aehiiieul,  iu  the  C'lise  of  People  of 
the  State  of  Tennessee"  r.  Tlionias  N. 
Frnzior,  Jiidne,  etc.  Bi'^^un  niiil  held 
at  Nashville,  Teunessoe,  Monday,  May 
11th,  Ib'.T.  Nashville :  S.  C.  Meri'Pr, 
PriDter  to  t.ho  State,  1807.    iip.  124. 


Form  of  Siitipiena  and  Summons  with 
Report  iif  Houfie  Conmiittee,  p|i.  8. 
Appendix;  conlainin};  llin  Eviden<'© 
and  .Vriiinnont  of  Counsel  in  the  ease 
(if  The  People  of  Tennessee  r.  Frnzior, 
Judge,  &c.,  Inipeaelied.     pp.  207. 


I 


()8t) 


HTATK    IMI'KACIIMl'.NT    TIIIALS. 


[atp. 


w;iH  piiHucil  inipcacliin;^  .loliii  .McCliirc,  V,w  cliicf-jilHlu'i'  of  tin-  State, 
wliit'li  cliarjii'd  :  that  he  liait  I'liiraircil  in  a  fi)iis|iira<'V  with  tlic  {{ovci'iior 
and  ollu'i's,  to  unlawfully  and  maliciously  dciirivo  IjiMitcnant-Ciovciiior 
.lanu's  M.  Johnson  of  his  ollico  to  which  lu;  had  Iioimi  duly  elected  and 
to  which  he  had  duly  (|Uulilied  ;  that  he  had  liarjiained  for  pay  and  hrihes 
to  inthiciice  his  actions  and  decisions  as  a  justice  of  said  court,  at  divers 
times  and  on  various  occasi(jiis,  all  (contrary  to  law  and  the  constitution 
of  the  State  of  Arkansas;  that  he  hud,  as  chief-justice  of  the  supreme 
coiirl .  wilhoiil  authcjrity  and  in  violation  of  law  and  the  Constitution  of  the 
Stati'  of  Arkansas,  issued  a  writ  of  mandamus  upon  Lieutenant-(iovernor 
.lames  M.  .lohnson.  "  now  aetinji  jjovernor  of  the  State  of  Arkansas."  hy 
reason  of  the  impeachment  of  (iovernor  I'owell  Clayton  hy  the  house  of 
representatives,  and  said  Clayton  sulTerinj;  under  said  disaliililies,  and 
prctendinsi;  to  restrain  the  said  lieutenaut-sfovernor  from  peiforminj;  the 
functions  of  said  ollice,  thus  presenlin<i  a  reniarkahle  and  unwarrantable 
case  of  one  co-ordinate  <lepartment  of  government  uttemptiu}^  to  restrain 
another  liy  a  writ  of  mandamus;  all  with  tlit  unlawful  and  corrupt  de- 
sign to  retard  the  operati<jn  of  the  State  government,  and  in  conteniiit 
of  the  house.  As  soon  as  a  ({ucjruin  of  the  senate  was  i)re8ent,  arti<'les 
of  imi)eachment  a),Minst  the  governor  and  chief-justice  were  presented. 
Other  State  olllcers  were  impeached  ahout  the  same  time,  amongst  them 
a  county  clerk  and  a  district  attorney.  The  senate  thereupon  adopted 
rules  for  till.'  court  of  impeachmeiil.  to  expedite  the  jiroeeedings,  which 
forl)ade  managers  from  arguing  any  preliminary  or  interlocutory  ques- 
tion or  molioii  during  tlie  trial  for  more  than  ten  minutes,  unless  the 
senate  should  otherwi>  '  tlirect,  and  liy  which  more  than  two  of  the 
managers  wore  piuMi/i^d  fiom  making  a  (inal  argument  on  the  merits, 
and  tin;  liiial  argiuiieiii,  of  each  was  limited  to  thirty  mim.tes.  unless  the 
senate  should  extend  iiie  time.  Thereupon  the  committee  of  managers 
reported  to  the  house  that  in  their  opinion  no  fair  and  impartial  trial  of 
the  impeachment  of  (ioverncir  Clayt(jn  could  he  had  hefore  the  senate 
under  those  rules,  and  that  any  trial  under  them  would  he  a  farce. 
They  also  stated  tliat  they  were  willing  to  again  appear  at  the  liar  of  the 
senate  and  aiuiounce  the  impeachment  of  the  governor  uiion  the  follow- 
ing conditions  :  That  they  should  he  assured  that  any  articles  of  im- 
peaciinient  pn^ferrod  hy  the  committee  against  the  said  governor  wi'l 
not  he  considered  invalid,  set  at  nauglit,  or  dismissed  hy  the  senate, 
because  notice  was  or  has  not  heen  given  to  them  within  the  time  re- 
quired by  law.  That  the  senate  would  give  the  connnittee  at  least 
twenty  days  in  which  to  prefer  particular  articles  of  impeachment 
against  the  governor  and  at  least  thirty  days  from  the  second  announce- 
ment or  notice  of  the  impeachment  in  which  to  produce  the  evidence  to 


[AI'I'. 


AI'I'.J 


A  li  KANSAS. 


fiST 


Hiistiiin  thp  Hnmo,  and  nlso  all  contintmncen  necrssary  to  ohtaiii  iiii])()rt- 
niit  ti'sliiiioiiy  which  Iht'v  ii!t(l  ftiili<(!  tu  olitain  after  thu  imc  u(  i-ciihoii- 
iilili'  ililif{{'iieo  ;  mill  that  the  senate  rejical  the  rules  adopted  for  iin- 
peMciiiiii'Ut  trials  and  <rrant  to  them  an  nnliniited  ri<;ht  of  nrgiinient  and 
dt'liati'  of  all  (|iu-HtionH  and  issues  of  linv,  fact  and  evidence  arising  in 
the  progrcsH  of  the  trial.  The  report  was  accepted,  the  couiinitteu 
discharged,  and  the  speaker  authorized  to  appoint  another  board  of 
managers,  which  was  done.  It  was  then  resolved  that  all  cases,  reports 
and  (|iicwlions  arising  in  any  way  upon  cases  of  impeachment  he  post- 
poned for  several  days,  except  (picstions  arising  out  of  the  impeachment 
of  the  governor  and  chief-justice.  The  new  committee  then  reported 
that  iliey  had  lieen  unable  to  tlnd  sufllcient  evidence  or  information  that 
would  warrant  them  in  attempting  to  prepare  particuhir  articles  of  im- 
peachment itgainst  the  governor,  and  recpiested  that  they  he  disdmrgeil. 
It  was  accordingly  resolved  liy  the  house  "That  fiu'ther  proceedings  in 
the  impeachment  of  I'owell  t'layton  he  dispensed  with,  and  that  the 
action  of  this  house  heretofore  taken,  he  set  aside  and  cancelled  ;  that 
the  senate  he  informed  of  the  action  of  this  hcjuse  iu  tiie  premises,  by 
the  clerk  of  the  house,  and  that  the  conunittee  as  the  board  of  nuina- 
gors  be  disciiargc(l."  On  tlie  same  day  Governor  Clayton  sent  the  sen- 
ate u  message  declining  to  accept  the  position  of  United  States  senator. 
The  committee  of  managers  aiijjointed  to  appear  and  prosecute  the  arti- 
cles of  impeachment  against  Ciiief-.lustice  McClure,  reported  that  they 
were  of  the  o(iinion  that  '"all  thosi'  spetMfications  and  charges  against 
the  Honorable  .John  McC'lure.  which  are  alleged  against  him  wiiile  he  was 
assoi'iate  justice  of  the  Supreme  Court  of  the  State  of  Arkansas,  cannot 
be  proiierly  and  legally  considered  against  him  as  chief-justice  of  the 
supreme  court  of  the  State  of  Arkansas."  They  presented  a  single  ar- 
ticle tif  iiiipeacliment.  This  charged  that  on  February  Kith,  lM71,at 
tlie  City  of  1/ittle  Hock,  in  the  state  of  Arkansas,  '■  unmindfid  of  the 
high  duties  of  his  ollh'c,  of  his  oath  of  olllce,  that  the  reqiiiren<ents  of 
the  constitution  should  be  honestly,  faithfully  and  iini)artially  adjudi- 
cated, did  unlawfully  and  iu  violation  of  the  laws  and  constitution  of 
the  state  of  Arkansas,"  issue  a  fiat  in  the  nature  of  a  temporary  re- 
straining order,  iu  writing,  'Mrected  to  the  clerk  of  the  supreme  court 
of  the  State  of  Arkansas,  directing  and  ordering  the  clerk  to  issue  forth- 
with an  order,  directed  as  tlie  law  directs,  commanding  and  restraining 
James  M.  .Ifjhnson  and  his  confederates  from  attempting  to  usurp  or 
exercise  the  functions  of  governor  of  the  State  of  Arkansas,  or  iu  any 
manner  to  interfere  with  the  exercise  of  the  functions  thereof  by  Powell 
Clayton.  That  thereupon  the  clerk  issued  his  order  .accordingly,  which 
order  was  duly  served  on  the  lieutenant-governor,  James  M.  Johnson ; 


t!88 


STATE   IJITEACHMENT   TRIALS. 


[Al-P, 


the  chief-justice  wuU  knowiug  tliat  Johnson  was  lieutenant-governor, 
and  "  whicli  order  was  unlawfiiUv  issued,  with  intent  then  and  tliere,  in 
violation  of  liie  hiws  and  constituion  of  tlie  Stute  of  Arkansas,  the  said 
•loiin  McClin-e.  eliief-justice  of  the  State  of  Arkansas,  to  interfere  witli 
the  exercise  of  tlie  rigiits,  franchises  and  functions  of  the  executive  de- 
jiartnicMt.  and  to  iiinder  tiie  said  .lames  M.  .lolnison,  l)eing  then  and 
tlierc  lieiileiiant-governor  of  tlie  State  of  Arkansas,  and  being  tlien  and 
tlurc  in  due  execution  and  discliarge  of  tiio  duties  of  said  ofllee, 
wliereliy  said  .lohn  McC'hire,  diief-justice  of  tlie  State  of  Arkansas,  did 
then  and  tliere  coinmit  and  was  guilty  of  a  high  niisdeineanor  in  ollicc." 

'I"hc  report  was  adopted  and  the  article  [iresented  at  the  bar  of  the 
senate.  A  ''oiiiproniisi!  ^^as  arranged,  under  which  .lohnson  resigned 
and  wa'-  a\)\)  nuted  secretary  of  state.  CJovervor  Chiytoii  was  then  re- 
elected to  the  Senate  of  the  I'nited  States,  and  accepted  thg  ollice. 

A  special  chief-justice  was  appointed  by  the  governor  to  preside  on 
the  trial  of  Chief-.Iustice  MeClure.  The  respondent  liled  a  demurrer  to 
the  articles,  upon  the  ground  that,  .'dthough  he  was  charged  with  unlaw- 
fully issuing  an  order,  it  was  not  alleged  that  he  did  it  with  a  corrupt 
motive,  or  with  an  intent  to  interrupt  the  course  of  law  and  justice. 
The  demurrer  was  unanimously  sustained.  In  the  same  year,  iinpeach- 
iiients  were  voted,  but  not  pressed,  against  several  judges  of  inferior 
courts,  prosecuting  attorneys,  and  county  clerks.'* 

LOUISIANA. 

In  181 1,  Renjarain  Elliott,  judge  of  the  city  court  of  the  city  of  La- 
fayette, was  inipeachi'd  and  tried  before  tlie  Louisiana  senate.  The 
aiticles  charged  that  he  had  failed  to  properly  keep  the  records  of  the 
naturalization  of  aliens  in  his  court,  and  that  he  had  permitted  the  issue 
by  his  clerk  of  seventeen  hundred  and  forty-eight  false  certilicates  of 
naturalization.  .Indah  V.  Henjaniin  was  one  of  the  managers,  and  Pierre 
Soule  one  of  the  counsel  for  the  respondent.  Judge  Elliott  was  con- 
victed and  sentenced  to  removal  from  (>lliee.'^ 


"  Arkansas  House  .lournal  for  1S71 ; 
Arkansas  Senate  .lowrnal  for  1H71 ; 
Trhil  of  Johu  McClure,  f'liicf-Justico 
of  Arkansas,  Lilllo  Itm!  ,  Arkansas: 
I'ric  e  &  llrClin-e,  Sliitc  I'rinti-rs,  1h71. 
The  BrooUs-Uaxter  "War.  A  Ilisloiy  of 
tlii'ltecoustriirtion  I'l'riocl  in  .\rkiinsns, 
l)y  .Tolin  M.  Hairdl.  The  Alniij;hty 
Dollar.  1S1)3  ;  Slawsou  Printing  Co., 
81.  Louis. 


■»  Oniclul  Report  of  llin  niph  Court 
of  IrnpcachMienl  of  the  State  of  Loui- 
siana, on  tli<>  Trial  of  Ueiijnniin  C. 
Elliott,  .Tnituo  of  thn  City  Court  of  the 
City  of  Liif.iyi'Ki';  Hc^inn  anil  liolilon 
at  tlic^  City  of  Niiw  DrlcHiis,  tlio  2:lil  of 
March,  1814.  (rnlilislicd  liy  Author- 
ity.) New  Orli'iins:  Vrinted  at  tlio 
olTlcn  of  tlio  JIorninK  Herald,  34  St. 
Charles  Street,  1844 ;  pp.  40. 


A1'I>.] 


i.onsiAXA. 


G89 


In  1H70,  Gnorgo  'M.  ■WicklitTc,  niiditor  of  the  pul)lio  ncconnts.  wiis 
iiiipuiiclu'd  and  trii'd  licfoi-c  tlic  soiiatc  of  the  same  Slate.  Tlie  artiilcs 
oliai'fi;i'd  a  default  iinoii  an  application  for  a  niandannis  to  eoniixd  the  issue 
of  warrants  l)y  him  to  whieh  ho  and  the  State  had  n  legal  defense  ;  tlie 
milawful  issue  of  warrants  on  tiie  State  treasury,  — in  one  case  for  his 
own  use,  in  another,  in  consideration  of  a  bribe  :  —  extorting  the  iiayuient 
of  large  sums  of  money  for  auditing  accounts  for  printing,  and  for  cutting 
up  warrants  into  smaller  warrants,  which  were  more  easily  negotiable; 
failing  to  make  a  report  retpiired  by  the  constitution  ;  issuing  a  new  war- 
rant in  ph.,  of  one  which  liad  been  issued  when  the  State  was  under 
the  control  of  the  Confederate  government ;  employing  more  clerks  than 
the  law  allowed  ;  and  keeping  his  odice  in  such  a  state  of  confusion  that 
it  was  impossililo  for  him  to  report  to  the  governor  or  tiie  general  assem- 
bly tiie  condition  of  tin'  State  linances.  or  for  the  committee  of  the  gen- 
eral assembly  to  ascertain  the  State's  linancial  condition  in  any  reasonable 
time,  thereby  proving  himself  to  be  incompetent  to  perform  the  duties 
and  functions  of  his  high  ollice. 

'I'he  respondent  answered,  denying  or  justifying  all  the  matters 
charged.  He  set  up  as  a  defense  to  several  of  the  artieles  that  he  had 
been  indicted,  tried,  and  ac(iuitted  of  the  matters  therein  charged  by  a 
court  and  jui-y.  After  the  evidence  was  concluded  and  a  jiidgiiiciit  was 
jjronounced,  the  counsel  for  the  respondent  ])resented  his  resignation 
from  his  ollice.  t  hief-.lustice  Ludeling,  at  the  re(|Uest  of  a  si'uatcir, 
stated  his  o])inion  tliat  the  resignation  did  not  de|)rive  the  court  of  juris- 
diction. .V  vote  was  taken  on  but  one  article,  which  charged  :  'I'hat  the 
respondent  had  issued  a  warrant  on  the  State  coni]itroller  for  $lll.s(t, 
anil  induced  the  ])ayee  to  .idorse  and  negotiate  it  for  his  own  lienclit, 
although  he  knew  tiiet  it  was  uiuiuthorized  and  issued  in  i>ayTneiil  of  an 
illegal  cl.'dm.  lie  was  unanimously  convicted,  and  seiiti-nccd  to  removal 
from  otiice  and  discpuilification  from  holding  any  ofllce  in  the  State."" 

In  lH7i,  (iovernor  Ilemy  C.  AVarmotii  w!is  impeached  and  tried 
before  the  State  senate.  The  articles  charged  ;  the  forcible  expulsion 
from  ollice  of  the  secretary  of  state  and  the  issue  of  a  connnission  to 
another  in  his  place;  the  unlawful  aiiiiointinent  after  the  adjournment 
of  the  senate  of  a  tax-collector  whose  nomination  the  senate  had  rejected  ; 
the  issue  of  connnissions  to  the  ollices  of  attorney-general,  judge,  sherilf 
and  other  ollices  to  candidates  who  had  not  been  I'lected  ;  connivance  in 
the  forcible  ejection  of  a  judge  from  his  otiice  in  order  to  obtain  posses- 
sion of  the  court  and  use  the  same  in  a  scheme  to  remove  an<l  set  aside 


■«  onieial  .Toiu'iial  of  the  Proceeil- 
iiiKS  of  the  Senalo  of  tlio  State  of 
Louisiaua,  at  the  session   liegiiu  and 


held  In  New  Orleans.  .I.in.  ;i,  IsTl). 
Hy  nulliorily.  New  Orleaas :  .V.  L. 
Leo,  Stale  Printer,  1M70  ;  (ip.  I',t2. 


690 


STATE  IMPEACHJIENT  TRIALS. 


[app. 


the  board  fiutliorized  to  count  ami  return  the  votes ;  the  offer  of  a  Ijrilie 
of  S''>0,000  to  the  Lieutenant  Governor,  P.  B.  S.  Piuchback,  at  two 
o'clock  ia  tlie  morning,  if  tlie  latter  would  on  that  day  organize  the  State 
senate  in  Wannoth's  interest,  break  down  the  opposition  to  the  Fusion 
party  in  the  legislature,  and  place  himself  under  the  respondent's  direc- 
tion and  control ;  the  inducement  and  procurement  of  the  supervisors  of 
registration  by  the  promise  of  patronage,  threats  of  dismissal  from  olli  e 
and  bribery,  to  refuse  and  fail  to  register  a  large  number  of  legal  "otci-s 
an<l  to  make  a  false  return  of  the  votes  cast  at  a  presidential  el  ui  <  >'  >n  ; 
the  offer  of  an  oflice  as  a  bribe  for  similar  misconduct  at  a  State  ekv.  oi\ , 
the  issue  after  his  iinpeachmeut  and  suspension  from  oflice  of  two  proc- 
lamations whicli  refused  to  recognize  tlie  legislature  wliicli  impeached 
him  and  recognized  another  body  as  the  lawful  legislatm-e.  The  re- 
spondent appeared  by  counsel  and  filed  exceptions  disputiig  the  legality 
of  the  court  and  the  lower  house  on  the  ground  that  they  were  not  law- 
ful bodies.  The  court  rejected  these  and  refused  to  permit  them  to  be 
filed.  Hel'ore  any  further  proceedings  the  setuite  requested  tiie  advice 
of  the  chief-justice  whether  the  trial  could  proceed  after  the  resiKjiident's 
term  of  ollice  had  expired.  Chief-Justice  Ludeling  delivered  an  oijiiiiou 
that  it  could  not,  saying  :  '■  I  (piestion  the  policy  of  kicking  a  dead  lion." 
The  senate  adopteil  this  opinion  and  adjourued.'" 


TEXAS. 

In  Texas,  1871,  charges  against  .lames  1{.  liurnett,  a  judge  of  the 
thirtieth  judicial  district,  were  presented  to  the  legislature,  witii  an  ap- 
plication for  his  removid.  The  charges  were  :  An  illegal  arrest  on  a 
charge  of  minder,  after  tiie  grand  jury  iiad  faile<l  to  find  an  iudicliiu'Ut ; 
false  rejjresentation  to  the  governor  that  the  civil  aiitliorities  were  iuial>le 
to  execute  the  laws  in  a  certain  county,  which  causae i  |)roclaniation  of 
martial  law,  arrest,  fine  and  im|)ris(inment  in  the  execution  of  the 
same,  and  increased  taxation  ;  refusal  to  enjoin  the  military  autlmritii'S 
from  taking  forcible  jio-ssession  of  corn  without  comiiensation  ;  atleuipt- 
ing  to  assassinate,  and  procuring  to  be  assassinated,  one  of  the  counsel 
in  a  case  that  was  tried  before  him,  by  an  assault  on  the  part  of  the 
judge,  who  was  then  protecteil  by  an  armed  Ixxly  of  State  police,  wiiile 
the  attorney  was  alone  and  unarmed  ;  lualiciously  and  through  revenge 
causing  the  arrest  of  ir.any  citizens  while  martial  law  prevailed  ;  con- 


'"  Prot'iHMliiiKs  of  thi'  Souiito  KiltiiiR 
as  a  Coiiildf  IjiipeiichMK'nt  in  tliiM'u.s() 
ofllii'  Slate  (if  Ijoui.siana  r.  Houry  C. 
Wurniolh.     By    Aulliority.    New  Or- 


leans: Printed  at  the  olIl<'o  of  tho 
Ucimliliciin,  lU  Cump  Street,  1873;  pp. 
14.     Soo  Hupra,  §  118. 


i» 


f- 


APP.] 


OHIO. 


691 


{ri'iUiiliiting,  ir,)on  his  acquittal,  one  of  the  persons  whom  he  had  arrested 
for  inunler  as  above  charged,  and  to  whom  lie  iiad  refused  hail,  and  an 
accompanying  apology  for  such  refusal,  upon  the  plea  that  he  was  cora- 
pi'lled  so  to  act,  —  meaning  therel)y  that  he  wouhl  have  lost  his  otHce 
hud  lie  granted  bail. 

Testimony  was  taken  before  a  committee  of  the  legislature  in  support 
of  and  against  the  petition." 

OHIO. 

In  1806,  Calvin  Pease,  president  judge  of  the  third  circuit  of  Ohio, 
held  that  so  much  of  the  .State  law  of  February  12th,  IKO;"),  as  attempted 
to  give  to  ju.stice8of  the  peace  jurisdiction  of  claims  for  more  than  twenty 
dollars,  and  to  i)reveiit  plaintitTs  in  other  courts  fnjin  recovering  costs 
when  they  recovered  jiidgmeut  for  more  than  twenty  and  less  than  lifty 
dollars,  was  repugnant  to  both  the  State  and  •  ederal  Constitutions,  and 
consc(iuently  void.  This,  which  was  the  first  decision  in  that  State  wliich 
held  an  act  of  the  legislature  unconstitutional,  was  followed  by  the  [ires- 
ident  judge  of  the  third  circuit,  George  Tod,  and  .ludge  Huntington  also 
of  the  supreme  court ;  but  it  created  g'-eat  piiblic  excitement,  and  led  to 
the  si'iiurate  impcacliiiieiit  of  .Iiidgcs  J-ease  and  Tod  at  the  session  of 
the  legislature  in  l.SOS.  .Iiidge  Ilmitington  had  in  the  meantime  been 
elected  governor;  and  for  that  reason  the  charge  against  him  was  aban- 
doned. The  articles  against  .bulge  Pease  charged  :  '•F(r.s^  That  on  ap- 
peal Iroiii  the  judgment  <if  a  justice  of  the  jjeace,  for  a  sum  exceeding 
twenty  dollars,  he  had,  as  president  ju<lge  of  the  third  circuit,  reversed 
that  judgment,  on  the  ground  that  the  justice  had  no  constitutional  ju- 
■isdietiuii  (if  the  case.  Secmd,  That  in  an  action  for  a  sum  between 
rwi-nty  and  lifty  dollars,  commenced  by  original  writ  from  the  court  of 
(  -iiimon  pleas,  he  had  allowed  the  plaintilT  his  costs  of  suit,  upon  recov- 
ering judgment,  contrary  to  the  twenty-ninth  section  of  the  Justices'  Act, 
and  the  lifth  section  of  the  act  organizing  the  judicial  courts.  Thinl, 
That,  -ilting  as  president  judge  of  the  third  circuit,  he  had  decidtd,  on 
various  orcasious,  that  the  court  had  full  power  to  set  aside,  suspend, 
and  declare  null  and  void,  the  fifth  section  of  the  act  defining  the  duties 
of  justices  of  the  peace." 

The  respondent's  answer  admitted  that  in  his  judi<'ial  capacity  he  had 
decided  that  the  fifth  section  of  the  act  was  unconstitutional  and  void, 
asserted  his  right  to  make  the  decision,  and  insisted  that  it  was  his  duty 

"The  State  of  Ti'xns  iiniiiiist  Hon.  tconlli   Lcf^islnliwe,  npiHiinteil  to  iu- 

.Jiinii'S    It.     Hiinic'lt,    jiidfji?    thlrtii'tli  vi'sliijiitc    clitirtii's    im't'i'iTiMl    liy    iiu 

jacficiiil  district.     Eviilciice  taki-n  In-  Adilri'ss  for  reiiuiviil  from  Ollirc.    .\UR- 

foro  the  .loint  (-'oiiunltteu  of  tlio  I'oiir-  tiu  :  J.  D.  Klliott,  State  Prlulor,  1H74. 


(192 


STATIC    IMI'KACIIMKNT   TIIIALS. 


[atp. 


to  (K'tenniiio  cases  broiiglit  before  him  ueeonling  to  the  convictions  of 
his  jiidirnipnt,  '•iiiiil  vindicated  tiie  purity  of  iiis  motives  and  iiiiiij,'lit- 
ness  of  his  oillcial  conchict."  After  a  trial  of  several  days,  on  Feliruary 
fitli,  1«01>,  .liidijo  Pease  was  acquitted,  throuij;h  the  lack  of  a  two-ltiii'ds 
vi*"  M':'ust  hiui.  The  vote  Oil  tlie  first  charge  was  unanimous  for  ac- 
qi'  1  the  second,  fifteen  for  conviction  against  nine  for  a((iuittal. 

The  I,  .  charge  was  decided,  liy  a  vote  of  sixteen  to  eight,  to  lie  insuf- 
ficient to  sustain  an  iuii)eachnient. 

At  the  same  session,  Judge  Tod  was  previously  tried  and  aciiuitted 
upon  similar  articles.  At  the  following  session,  the  legislature,  hy  a 
majority  of  less  than  two-thirds,  adoi)te(l  the  "sweeping  resolution" 
which  declared  to  be  vacant  all  judicial  ollices  that  had  been  liUed 
by  appointment  before  the  adoption  of  the  constitutional  ])rovision 
giving  to  the  legislature  the  right  to  elect  ju<lges.  Although  many  de- 
clared this  resolution  to  be  a  violation  of  the  .State  constitution,  those 
judges  against  whom  it  was  directed  sut)mittcd.  Judge  Pease  promptly 
resigned,  and  Judge  Tod  made  no  objection  to  the  aiii)oiiitment  of  his 
successor.     ISix  years  later,  b(jth  of  them  were  restored  to  the  biincli.''' 

In  \s\].  Judge  John  Thompson  was  impeached,  and  in  ls\-2,  tried 
and  acquitteil  by  the  senate  of  the  same  State. 

Since  the  proceedings  are  only  reported  in  the  legislative  journals, 
"which  are  rare,  the  articles  are  inserted  here  at  length :  — 

'•  Articles  exhihileil  by  the  house  of  representatives  of  the  state  of  Ohio, 
in  the  name  of  themselves  and  of  all  the  people  of  the  state  of  Ohio,  against 
John  Thompson,  jjresident  of  the  court  of  Conniion  Pleas,  for  the  second 
circuit,  in  maintenance  and  support  of  their  impeachment  against  him  for 
liigh  crimes  and  mi.sdemcanors. 

••Article  I.  That  the  said  John  Thom])son,  uiiminclful  of  the  solemn 
<luties  of  his  otlice.and  contrary  to  the  sacred  obligation  by  which  he  stood 
bound  to  (lischari;e  them  faithfully  and  impartially,  airreeably  to  law  and 
williout  respect  to  persons  :  the  said  John  Tlioni|)son.  on  the  trial  of  Jonas 
(iraham,  charged  with  larceny,  before  the  court  of  Counnon  I'leas,  holdcn 
in  the  county  of  Clermont,  in  the  circuit  aforesaid,  at  the  town  of  Williams- 
burg, in  tlu!  month  of  September,  in  the  year  of  our  Lord  one  thousand, 
ei'.dit  hiindreil  and  eleven,  whereat  the  said  John  Thompson,  president, 
dill,  in  his  judicial  capacity,  arliitrarily,  illegally  an<l  injuriously,  and  in  a 
manner  highly  o[)pressive,  conline  and  restrict  the  attornies  engaged  in  the 
defen<'e  of  the  said  (iraham  to  two  in  nmnber,  in  their  address  to  the  jury, 
in  defence  of  their  client  ;  and  did  also  observe,  that  the  atlorines  engaged 
in  the  ease  should  not  occupy  more  than  ten  minutes,  each,  in  their  argu- 


''J  Siiotcli   ot'     Hon.    Calvbi    I'oaso, 
Western   Law  Monllily,  vol.  ii,  p.    L 


Sketch  of  Hon.  David  Tod,  by  same 
author,  iliid.,  p.  ll:i. 


Ai-r.] 


OHIO. 


G!13 


nicnts  to  the  jury  on  the  trial  aforesuiil  :  and  when  one  of  the  dofendaiu's 
counsel  stated  to  the  court,  in  respectful  terms,  lliat  lie  tliouj.'lit  it  inipossi- 
lile  to  elucidate  the  law  and  evidence  arisini;  on  the  casi^  aforesaid  in  so 
siioi't  a  lime  as  ten  niiiiiites,  he,  the  said  John  Thompson,  imperiously  and 
peremptorily  declared  from  the  bench,  that  if  the  attornios  en<;af{ed  in  the 
cause  iiforesaid  wore  not  satisfied  with  ten  minutes  each,  they  should  liave 
hut  live;  and  to  live  niiuules,  each,  the  jittornies  aforesaid,  in  their  ad- 
dress to  the  jury  aforesaid,  hy  the  order  of  the  said  John  Thompson,  were 
arhitrarily  and  illeirally  restricted  and  conlined  ;  and  the  said  .John  1'honii)- 
8on,  in  a  manner  highly  arbitrary,  oiipressive  and  unjust,  at  the  term  of  the 
court  of  common  pleas  aforesaid,  and  on  the  trial  of  Samuel  Howell,  charfred 
with  usurpation  of  ollice  (when  one  of  the  attornies  of  said  court  was  called 
by  the  counsel  for  said  Howell  to  i;ive  testimony  in  behalf  of  his  client), 
declared  from  the  bench,  while  in  Ihedischarire  of  his  ollieial  duties,  that  the 
{{entletneu  of  the  bar  mif;hl  take  notice,  that  no  attorney  should  Ihereafti'r 
be  admitted  to  give  testimony  in  that  court,  and  the  attorney  aforesaid, 
who  was  called  as  a  witness,  though  not  engaged  in  the  cause,  wa^5  not 
sworn. 

'■^Artirle  II.  And  the  said  John  Thompson,  promptest  by  a  similar  spirit 
of  persecution  and  injustice,  at  a  court  holden  in  the  town  of  AVilliamsburg, 
in  and  for  the  county  aforesaid,  in  the  month  of  December,  instant,  did, 
while  in  the  discharge  of  his  ollieial  duties,  conduct  himself  in  a  uumner 
highly  arbitrary,  illegal,  oppressive  and  unjust.  1st.  In  ordering  the  con- 
strddes  who  kept  the  doors  of  the  bar,  to  knock  down  certain  by-standers 
with  their  staves,  without  assigning  any  reason  therefor.  •Jnd.  In  refusing 
to  sign  a  bill  of  exceiitions  when  legall ,  lcndere<l  on  the  trial  of  Sauniel 
Klliot,  and  in  erasing  with  hi.s  pen  part  of  the  bill  aforesaid,  and  writ- 
ing another  with  his  own  hand,  containing  facts  not  ex<epted  to,  though 
nannug  the  siune  parties  and  cause,  and  signed  the  same  as  the  true  bill  of 
exceptions.  .'!rd.  In  declaring  on  the  trial  of  Benjamin  Snider,  who  was 
charged  with  an  assault  and  battery,  as  the  opinion  of  the  court  that  the 
attorney  for  the  said  Snider  had  no  right  to  argue  the  (pu'stiou  of  fact  to 
the  jury,  without  the  iiernussiou  of  the  ec  u't,  and  when  the  opinion  of  the 
associate  judges  was  individually  called  foi  on  the  ([ueslion  of  right  afore- 
said, and  they  decided  the  attcuney  had  the  right  to  argue  facts  to  the  jury, 
John  Thompson  imperiously  and  impatiently  tolil  llu^  attorney  to  go  on. 
4th.  In  coercing  a  jury  which  luul  been  a  long  time  out,  and  which  eamo 
into  court  iuid  asked  again  to  exannne  the  witness,  but  was  prevented  by 
John  Thompson,  wIk^  told  them  the  cause  was  too  trilling  to  take  up  the 
time  of  the  court,  aiul  ordered  the  jury  innnedialely  to  withdraw,  .lib.  In 
ordering  and  compelling  a  jury  to  be  sworn  on  the  trial  of  James  Lewis, 
charged  with  robbery,  although  the  jury  all  declareil  in  their  places,  be- 
fore they  were  sworn,  that  they  had  nuule  up  an  opinion  on  the  case,  and 
th<'  jury  found  the  defeudiuit  guilty  without  leaving  the  box. 

^^Artide  111.  That  instigated  by  a  spirit  of  wantonness,  injustice  and 


694 


STATK    I.MI'EACIIJXKXT   THIALS. 


[app. 


intemperance,  entirely  incompatil)lo  wiili  liis  duties  as  a  judge,  and  totally 
unworthy  the  liigh  station  he  tills,  ho,  the  said  John  Thompson,  at  a  court 
of  common  pleas  holdcn  at  Chillicotho,  in  the  county  of  l{oss,  in  the  circuit 
aforesaid,  on  the  second  Monday  of  October,  in  the  year  of  our  Lord,  one 
thousand,  el^ht  hundred  and  eleven,  while  in  the  (iiscdiarire  of  his  ollicii'.l 
duties,  did  di  :iare  that  the  jjeojjle  were  their  own  worst  enemies,  and  that 
they  were  cuned  brutes  —  vi-orse  than  brutes. 

''Artirle  1 1.  That  at  a  court  of  connnon  pit-as  holden  in  and  for  the  county 
of  IIii;hlan(.  at  the  town  of  lIillsl)orouj;h,  in  the  monih  of  November  last, 
the  said  .Tohn  Thompson,  not  rejjardinj;  bis  ollicial  duties,  illcf^ally  and  un- 
justly refused  to  sij»n  a  'lill  of  exceplions  to  tesiiniony  olfered  on  the  trial 
of  the  connnissioners  of  the  county  aforesaiil,  who  were  eharjicd  with  im- 
proper conduct  in  the  discharge  of  their  duties  as  commissioners.  And 
.secondly,  for  refusing  to  let  an  aiipeal,  legally  taken  by  James  D.  Scott, 
from  the  judgment  of  a  justice  of  the  peace,  be  entered  on  the  docket  of 
said  court. 

"Article  V.  That  the  said  John  Thompson,  disregarding  the  duties  and 
dignity  of  his  ollicial  character,  did,  at  (iallipolis,  in  the  county  of  (iallia, 
during  the  term  of  the  court  of  connnon  pleas  holdcn  therein  for  the  county 
aforesaid,  in  the  month  of  .'^eptenlber,  one  thousand  eight  liundreil  and  ten, 
return  '.'do  court  two  recognizances  of  special  bail,  purporting  to  be  taken 
and  acknowledged  bi^fore  him  as  jiresidcnl  of  the  second  circuit,  in  both  of 
which  recognizances  Calvin  Shepherd  and  Luther  Shepherd  were  named  as 
special  bail  for  a  certain  AVilliam  Uridger,  which  recognizances  of  special 
hail  were  not  on  the  day  on  which  recognizuaees  were  dated,  or  at  any 
other  time  before  or  after,  acknowledged  by  the  .said  lAither  Shepherd  and 
Calvin  Shepherd  l)efore  the  said  John  Thompson,  or  any  other  person. 

'^Article  ]'I.  That  the  said  John  Thompson,  disregarding  the  importimt 
privilege  of  trial  by  jury,  and  disregarding  his  judicial  character,  did, 
at  a  court  of  common  pleas  holdcn  at  (rallipolis,  for  the  county  of  Gallia, 
in  the  month  of  September,  one  thousand  eight  hundred  and  eleven,  on 
the  trial  between  Edward  W.  Tupper,  and  Joseph  and  Thomas  Vail,  arbi- 
trarily, unjustly  and  illegally,  conline  the  atlornies  employed  to  twenty  or 
twenty-live  minutes  in  their  arguments  to  the  jury  ;  and  when  (uie  of  the 
attornies  had  spoken  that  length  of  time  to  the  jury,  Judge  Thompson 
ordered  him  to  sit  down,  and  assigned  as  a  reason  for  such  order,  that  the 
court  were  convinced  that  the  jury  would  not  do  justice  to  the  cause. 

^'Article  Vll.  That  at  a  court  of  common  pleas  held  at  {iallipolis,  in  the 
county  of  (iallia,  in  the  month  of  September,  one  thousand  eight  hundred 
and  eleven,  the  said  John  'I'lioiu]);  )n,  not  regarding  his  ollicial  duties,  did 
illegally  and  unjustly  onler  the  |)i'osecuting  attorney  not  to  suffer  any  per- 
son to  give  testimony  to  the  grand  jury,  until  he  knew  what  that  testimony 
was,  (hat  it  might  be  laid  before  the  court  before  it  went  to  the  grand  jury. 
And  at  the  same  term  in  the  county  and  place  aforesaid,  he  the  said  John 
Thompson  did,  illegally  and  arbitrarily,  scud  a  message  to  the  forenuin  of 


ATP.] 


OHIO. 


695 


the  graml  jury  the  day  before,  and  send  it  to  him  for  tlie  purpose  of  pre- 
venting liini,  the  said  John  Thomjison,  from  heing  indieted  for  having 
returned  into  conrt  a  recognizance  of  special  l)ail  whicli  never  liad  been 
aclinowledged  i)efore  him,  or  any  otlier  person,  l)y  tlie  persons  named  as 
bail  in  the  recognizance  aforesaid. 

'•Article  Vlll.  That  the  said  Jolm  Thompson,  influenced  by  a  spirit  of 
wiintonnes.s  and  aversion  to  the  American  government  and  tlie  good  peojile 
of  these  I'nited  Stales,  did,  at  a  court  of  conmion  picas,  holden  at  Circle- 
ville,  in  the  county  of  Pickaway,  in  the  month  of  Xovcmber,  one  thousand 
eight  hundred  and  eleven,  while  delivering  a  charge  to  the  grand  juiT, 
illegally  and  derogatory  to  his  cliaracter  as  a  judge,  witli  the  intention  to 
l)rejudice  the  minds  of  the  people  against  their  government,  declare  from 
the  bench,  that  the  American  government  was  the  most  corrupt  and  per- 
fidious government  in  the  world  ;  that  the  people  of  the  government  afore- 
said were  their  own  worst  enemies — that  they  were  devils,  perfect  devils 
in  men's  clothing. 

"  And  the  house  of  reijresentatives.  by  protestation,  saving  to  themselves 
the  liberty  of  exhibiting,  at  any  time  hereafter,  any  further  articles  or  other 
accusation  or  impeachment  against  him,  the  .said  John  Thompson,  and  also 
of  replying  to  the  answers  he  shall  make  to  the  said  articles,  orany  of  them, 
and  of  olfering  proof  to  all  and  every  of  llie  aforesaid  articles,  inipeach- 
ment  or  accusation  which  shall  be  exliildted  by  them,  as  the  case  may  re- 
quire—  do  demand  that  the  saiil  John  Thompson  may  be  put  to  answer  the 
aforesaid  crimes  and  mi.sdemeanors,  and  that  .such  proceedings,  examina- 
tions, trials  and  judgments  may  be  thereon  had  and  given,  as  are  agree- 
able to  law  and  justice."  "" 

In  1H14,  James  Ferguson,  a  ju.stlce  of  the  peace,  was  impeached,  tried 
and  aciiuitted  before  tbe  senate  of  the  same  State.  The  articles  cliarg;ed 
the  unlawful  discharge  of  two  ])ersons  arrested  under  a  warrant  for  as- 
sault, and  refusal  in  the  same  case  to  permit  tiie  complainant  upon 
whom  llie  assault  had  been  connnitted  to  testify  on  the  i)art  of  the  .State; 
causing  tlie  illegal  and  unjust  rendition  of  a  judgment  against  the  com- 
plainant for  costs  and  the  collection  of  the  same  through  a  constable  ; 
refusing  to  furnish  the  complainant  witli  a  vo\i\  or  transcript  from  his 
docket,  although  tin;  legal  fee  was  tendered  him  ;  and  the  use  of  inde- 
corous, insulting  and  angry  language  on  the  same  occasion,  when  he 
ordered  the  complainant  out  of  his  odicc  and  followed  him  into  the  yard, 
threatening  to  kick  him  as  long  as  he  could  find  him  if  he  did  not  im- 
mediately depart." 


•"  Copied  from  House  Journal  of 
Ohio,  for  the  Sessk)ii  of  1811  and  1812, 
at  the  N.  Y.  State  Litirary. 

81  Journal   of    tlie    Senate    of    the 


State  of  Oliio,  being  the  Twe  fib  Gen- 
eral .\ssenilily,  begun  and  hi>hl  In  the 
town  of  Chillieotho,  in  the  county  of 
Hoss,   on  Jlouday,  the  sixth   day  of 


CitO 


STATK  IMPEACHMENT   TUIALS. 


[a  PP. 


ILLINUIS. 

In  l'-*33.  Theophilus  W.  Siiiitli,  a  justice  of  the  supreme  court,  was 
iinpeaclii'd  iiuil  tried  before  the  senate  of  tlie  State  of  Illinois.  The 
articles  cluirLrcd  :  Ills  permitting;  his  son.  then  a  minor,  to  barjjain  off 
the  ollice  cl'  iloik  of  the  circuit  court  of  .Madison  county  and  to  liire  anil 
employ  another  to  do  and  perform  the  duties  thereof  at  twenty-five  dol- 
lars a  mouth,  reserving  the  fees  and  emoluments  of  the  said  otiice  to 
himself,  whicii  contract  the  respondent  ratified  and  contirmcd,  reserving 
the  fees  and  emoluments  of  the  oflice  less  the  twenty-live  dollars  per 
month  to  himself  witli  the  intention  of  reserving  a  future  appointment 
to  the  olliee  for  his  son  ;  api)ointments  to  the  olllee  of  clerk  of  the  cir- 
cuit court  within  his  circuit  witliout  reipiiriiig  bonds  as  the  law  directed, 
with  the  corrupt  intention  of  rendering  said  olliee  subject  to  his  will ; 
bringing  a  suit  in  which  he  was  interested  in  a  court  in  wliich  he  presided, 
and  causing  tlie  defendants  therein  to  be  held  to  bail  in  an  excessive 
sum ;  susi)ending  an  attorney  from  practice  because  he  had  instructed 
his  client  to  consent  to  any  change  of  veinie  which  wouUl  remove  the 
cause  to  any  court  where  the  respondent  did  not  preside ;  conniiitting  a 
quaker  to  jail  and  certifying  that  he  was  inconi])et<'nt  to  serve  as  a  juror 
by  reason  of  a  want  of  soundness  of  mind,  because  he  presented  him- 
self to  the  court  with  his  hat  on  ;  and  rendering  an  opinion  involving 
the  rights  of  a  county  with  the  intent  to  pri  judice  it  on  an  ngreed  case 
made  up  between  the  sheriff  and  county  treasurer,  although  lie  well 
knew  that  the  rights  of  tiie  county  might  lie,  and  tliey  in  fact  were, 
afterwards  submitted  to  his  decision,  which  was  then  made  in  accor- 
dance with  the  [)receding  opinion. 

Tlie  respondent  was  ae(iuitted  on  all  the  charges,  the  senate  being 
nearly  equally  divided. " 

MICHIGAN. 

In  1872,  Ch.irlos  A.  Edmonds,  conmiissioner  of  the  State  land-office 
was  impeached  and  tried  before  tlie  senate  of  Micliigan.  'I"he  articles 
charged  him  with  corruiitly  withholding  land  from  sale  for  tin;  benefit 
of  certain  land-dealers  in  return  for  money  [laid  to  himself  and  deputies 
and  clerks  :  with  engaging  in  the  purc'hase  of  State  lands,  sold  in  his 
olliee  ;  with  deciding  that  certain  lands  which  were  in  the  possession  of 
actual  settlers  who  had  failed  to  file  proofs  of  their  settlement  and  occu- 

Dccenilior,    1813,  and  in   tlio  twelfth  '- Appi'iulix  to  Illinois  Soaate  .Tour- 
year  of  the  salil  Slate.     Publislieil  by  iial   fur  ISifJ.     Vaiidulia  :    PriiiloU   by 
ttuthnrity.      Cliillicotfie :    iTiUt'^d    by  Gioimr  .V- Slierniaa,  1833.     pp.!)!. 
James  Barnes,  1813. 


AIM'.] 


WISCONSIN. 


697 


piiiKT  ill  liis  ofllce  wore  subject  to  sale,  and  witli  fiirnisliing  secret  informa* 
tion  foiiceriiinj;  siicli  IiuuIm  to  laml-dt'ak'rs,  in  wlioso  (iroflts  lie  Khared ; 
witli  eufrafriiij;;  in  tlie  .sale  of  swaiiip-laiid  scrii) ;  wifii  ajuiointing  and  la'ep- 
ing  in  iiis  ollicf  as  cleiks  men  of  dissolnti'  liabits  and  cliaracter,  unwoi'tliy 
of  tiieir  jHjsiUon,  and  ailowinji  tin'in  to  iiurelia.se  and  to  l»e  interested  in 
the  pnrciia.se  of  land  in  lii.s  olllee,  and  to  corruptly  sell  to  land-dealers 
valuable  information  therein  contained  ;  witli  keeping  for  iiis  own  use, 
tiie  pureliase  mouev  from  (State  lands  and  depositing  in  the  .State 
treasury  swamp-land  scrij)  in  place  thereof ;  with  depo.sitiiig  in  a  post- 
olllce  of  the  United  States,  in  the  State  of  Indiana,  an  obscene  news- 
papiT  entitled  "  Every  Saturday  Night."  in  violation  of  the  statutes  of 
the  United  .States  regidating  matter  transmitted  tiirongh  tlie  mails; 
with  |)ublishing  and  circulating  the  same  news]iaper  in  the  .State  of 
Michigan;  with  disgracing  his  odice  by  drunkenness  during  his  ofllcial 
term  at  the  City  of  Lansing  ;  and  with  committing  adultery  at  the  city  of 
Lansing,  during  his  olllcial  term,  he  then  being  a  married  man.  The 
res|)on('.ent  was  actpiitted  on  all  these  charges,  in  most  instances  by  a 
majcrity  or  nnaiiimous  vote  in  his  favor ;  and  on  three  articles  by  a 
bare  majority  which  was  less  than  two-thirds  against  him.  He  was  ably 
defended  by  .lohn  15.  .Shipiiian,  whose  arginiicnts  contained  the  most 
learned  disciuisition  on  the  law  of  impeachment  that  the  writer  has  ever 
seen."" 

WISCONSIN. 

In  1853,  Levi  Ilnbbell.  judge  of  the  second  judicial  circuit  of  the  State 
of  Wisconsin,  was  impeached  r.nd  tried  before  the  State  senate.  The 
articles  cluirged  :  that  he  consulted  with  one  of  the  eoinisel  in  a  case 
pending  liefore  him  during  the  tiial.  aii<l  afterwards  while  he  was  holding 
his  decision  under  advisement,  and  that  at  the  same  time  he  borrowed 
from  the  s.ime  counsel  two  hundred  dollars,  making  no  agreement  for 
the  repayment  thereof,  which  the  counsel  charged  to  his  client's  account ; 
that  witiiiu  two  days  thereafter  he  decided  in  favor  of  the  client  of  the 
lawyer  from  whom  he  had  borrowed  tlii^  money,  and  that  the  so-ca'.led 
loan  was  treated  as  a  gift  mitil  after  threats  of  prosecution  by  imiieach- 
ment  for  receiving  the  same  as  a  bribe,  when  he  gave  a  due-bill  for  the 
sum  of  money  wliicii  was  never  collected.  That  he  presided  and  adju- 
dicated as  judge  in  causes  in  wliicli  he  was  pecuniarily  interested  ;  with 
speeilications  of  his  pin'chase  of  a  judgment,  and  his  subsequent  hearing 

"Trail  of  Cliiirles  A.  Eilnionds,  Coin-  lives ngiihist  him,  for  Corrupt Couduet 

mtssioiier  of   llie  L;iii(l  Olllee  .  f   tlie  in   oniee.  Crimes  and  Misiloineaiiors. 

Stale  of  lliehiKiin,  liefore  tlie  Seimli>  I!.v  Authority.  Liini-iiifj  :  W.  S. 'ieorge 

of  Kiiiil  State,  oil  nil  iiiipeiieliiiieMt  pre-  .V  ('o..St.i1e  I'rintcrsnnd  Binders,  1872.. 

pared  by  the  House  of  Keiireseuta-  Vols,  i  ami  ii.     pp.  1891. 


OitS 


STATK    IMI'KACHMENT   TKIALS. 


[ai'P. 


niid  lU'nyin;;  a  motion  to  disHolvc  an  injunction  granted  upon  a  creditor's 
liill  hroujilit  to  collect  the  same  in  tlic  name  of  a  third  party  wlio  held 
t!io  jiidfi;incnt  for  his  uhc  ;  of  his  rcnderinfj;  jud<^ment  in  a  unit  to  colh'ct 
a  jiromissory  noti^  held  for  his  use  and  lienefit  liy  another,  and  of  his  sub- 
BC{(uent  confirnnition  of  a  sale  of  real  estate  under  said  judjiment,  wliicli 
had  been  sold  to  his  brother  for  his  use  and  benefit.  That  lie  had  will- 
fully, arbitrarily,  partially  and  illejially  sentenced  persons  convicted  of 
crime  to  punishment  ditTerent  from  the  punishment  prescribed  by  law ; 
with  speeilications  of  the  sentence  of  ii  man  convicted  of  an  assault  with 
intent  to  kill  to  a  line  of  two  hundred  dollars  and  costs,  and  to  the 
sentence  of  a  nu\n  coLvicted  of  grand  larceny  to  a  fine  of  five  dollars 
and  costs.  That  he  had  presided  and  adjudicated  in  causes,  in  the 
subject  whereof  he  hac  been  retained  and  connsellod  with  as  attorney, 
solicitor  and  counsellor  by  the  parties  to  such  causes,  and  had  acted  as 
attorney,  solicitor  aii'i  counsellor  in  such  causes  ;  with  specifications. 
That  he  had  takei'.  and  used  moneys  paid  into  his  court  in  the  progress 
of  the  suits  titer jin,  to  the  manifest  scandal  and  unnger  of  the  atlminis- 
tration  of  justi'je ;  with  specifications  of  his  taking  from  the  sherilT  and 
clerk  money  collected  in  civil  and  criminal  i)roceedings,  and  keeping  and 
using  the  same  for  a  considerable  period  of  time.  That  he  had  im- 
properly and  collusively  given  judicial  advice  and  made  jud'  •ial  promises 
to  suitors  and  persons  likely  to  become  suitors  in  the  courts  of  tlie  State 
on  the  subject-matter  of  tiieir  suits  ;  with  three  s])ecifications,  the  last 
of  which  charged  that  he  gave  the  advice  concerning  a  divorce  suit  which 
was  afterwards  l)rought  before  him,  and  after  granting  a  decree  for 
divorce,  solicited  a  present  from  the  plaintilT.  That  in  the  exercise  of 
his  judicial  functions  he  had  conducted  himself  with  undue  and  unjust 
partiality  and  favor  to  particular  suitors  in  his  court;  with  specifications 
of  his  refusal  to  hold  a  special  term  for  the  purpose  of  confirming  a 
sale,  becau.se  a  party  interested  was  his  oiiponent,  and  afterwards 
holding  tlie  same  for  the  benefit  of  another  party  who  was  his  friend. 
That  contrary  to  public  decency  he  had  a  private  and  indecent  interview 
witli  tiie  wife  of  a  party  against  whom  an  indictment  was  pending  in  his 
court,  wliereiu  she  solicited  him  on  behalf  of  her  husband  in  the  matter 
of  said  indictment,  and  that  he  afterwards  brought  about  an  acquittal 
of  her  husband.  That  against  public  decency  he  had  a  private  and  in- 
decent interview  with  a  woman  who  was  living  apart  from  her  husband, 
when  he  advised  her  in  relation  to  a  divorce  ;  afterwards  permitted  the 
husband,  who  also  desired  a  divorce  from  his  wife,  to  exhibit  allldavits  to 
him  in  support  of  such  an  ai)plication,  advised  the  latter  that  the  papers 
did  not  establish  grounds  for  a  divorce,  and  that  he  could  obtain  his  end 
by  permitting  his  wife  to  obtain  it,  to  which  the  husband  assented  ;  and 


AIM'.] 


SIIXNKSOTA. 


699 


aftcrwanls  knowiiii;  of  this  collusion,  iiijide  a  dccrci'  pi'jintiiiir  tlio 
(livoicd  iigiiiimt  tlu^  liiisliiiiKi  in  tin;  wife's  favor.  'I'liiit  iu'  iiiikK:  an 
onlcr  stayin];;  an  execution  on  a  jiid^rTnent  until  the  finliu'r  ordur  of  tlio 
court,  lu'cause  it  was  int'orivi'nii'nt  and  dilliv'ult  f<jr  tlie  difcndant  toiiay 
it.  'I'hiit  ho  partially  and  unfairly  attiMnpted  to  jircvt  i  tlui  coun- 
Hcl  for  tli(!  plaintitY,  in  an  action  tried  before  liini,  from  adhering 
to  an  udinission  of  fact  made  liy  such  counsel,  and  from  making  thu 
same.  That  he  insisted  u|)on  hearing  a  certain  cause  in  chancery  at  ft 
special  term  held  by  iiini  for  that  puri)ose,  and  arl)itrarily  and  partially 
refused  the  counsel  for  the  defendant  ade(iuati'  U:iu;  I'nr  the  argument  of 
said  cause.  'I'liat  he  had  private  and  indecent  interviews  with  women 
for  the  purpo.-e  of  obtaining  divorces,  contrary  to  pulilic  decency  and  to 
the  manifest  scandal  and  danger  to  the  administration  of  justice;  with 
four  specifications,  two  of  which  were  set  forth  in  the  specifications  iu 
the  i)revious  charges.  That  he  had  arbitrarily  and  oppressively  exer- 
cised the  functions  of  his  judicud  ollice  to  the  danger  of  suitors  and  the 
administration  of  justice  ;  with  specifications  of  ordering  a  new  trial 
without  sufllcient  cause  and  without  argument;  of  refusing  counsel  ade- 
quate time  for  argument ;  of  staying  an  execution  without  sufli<'ient  cause  ; 
of  {pKisliiiii,'  an  indictment  without  jiroper  cause,  after  hi'ving  previously 
refused  to  (plash  the  same  ;  and  of  forcing  a  motion  to  a  hearing  with- 
out reasonalile  cause.  That  he  had  contrary  to  his  duty  and  obligation 
allowed  himself  to  be  imju'operly  counselled  on  the  subject  of  suits  and 
proceedings  instituted  or  about  to  be  instituted  in  his  courts  l)y  suitors 
and  their  friends  and  agents  to  the  manifest  scandal  and  danger  to  the 
administration  of  justice,  witii  twenty-one  specifications  ;  and  that  he 
liad  contrary  to  his  duty  and  obligation  as  such  judge  informed  and  ad- 
vised ii])oii  the  subject-matter  of  suits  institiite<l  or  aiiout  to  l)e  insti- 
tuted in  the  circuit  and  supreme  courts  of  this  State,  suitors,  their 
friends  and  agents,  to  the  manifest  scandal  and  danger  to  the  adminis- 
tration of  justice. 

.liidge  Ilubbell  was  acquitted  by  a  majority  vote  in  his  favor  on  all  of 
the  articles.     In  some  cases  the  vote  was  unanimous.'* 


MINNESOTA. 

In  1873,  the  ^Minnesota  house  of  representatives  impeached  William 
Seeger,  the  Stale  treasurer.  The  charges  were  his  concealment  of  the 
delinquency  of  his  predecessor  in  oflice,  ond  his  loaning  the  State  funds 

6»  Trial  of    Inipeachniont   of    Levi  T.    C.   Leland.     Berinh   Brown,   Pub- 

Hubliell,  Jiiiijie  of  tlio  Second  .ludicial  Usher,   Madison  :  Argus   &   Democrat 

Circuit,  by  tho  Seiiato  of  (ho  Stale  of  Steam  Press,  1853.     p.  820. 
Wlseousiu,  Juuo,  1853.     lli'iiorled  by 


700 


STATK    IMI'KArHMENT   TKIALH. 


[ATI*. 


to  piivatt'  iiidividiiiils,  some  of  llii'in  liis  lioiulaineii,  n  practice  wliit'b  was 
Btiiiiuiti/.('(1  as  hazardous  to  the  Hafoty  of  tlie  pulilic  nioneyn,  althoiiirli 
not  foiliiiliU'ii  liy  any  statiitf.  After  tht>  artich'S  were  presented  to  tlie 
st'iiiili',  Se('ii>'r  sent  to  the  };overnor  liin  reHifjnation  in  a  letter  statin;;: 
tiiat '•  lie  lieiieved  Iiiniself  already  acquitted  in  the  minds  of  all  fairly 
dispo.sed  men"  ;  hut  tiiat  tiie  pritieipal  reason  for  his  resi^ination  was 
the  informal  ion  he  had  recently  received,  that  his  counsel  fees  and 
other  expenses,  if  he  defended  the  inipeaclinient,  would  amount  to  five 
or  nix  thousand  doliars,  which  would  reduce  his  family  to  penury.  The 
governor  acei'pted  the  resignation,  liut  the  senate  voteil  —  twenty-six 
yeas  to  ten  nays  —  "that  this  court  will  receive  uo  evidence  concerning 
tile  resignation  of  William  Seeger.  Seeger's  counsel  then  tiled  a  plea  r 
guilty  to  each  of  the  articles  "  in  the  manner  and  form  as  in  said  eiiars 
and  8i)ecilications  alleged,"  wiiich  concluded  with  a  statement  that  "  i... 
same  were  done  witlaait  any  corrupt  or  willful  intent."  The  senate 
thereupon  by  a  vote  of  more  than  two-thirds  found  the  respondent 
guilty  and  sentenced  liim  to  removal  from  ollice."'^ 

In  1878,  Sherman  Page,  .ludge  of  the  Tenth  Judicial  District,  was 
imiieached  and  tried  liefore  the  senate  of  the  same  State.  The  articles 
charged  him  with  maliciously  adjourning  for  four  years  the  trial  of  an 
indictment  for  a  liln'l  against  hiin,  jx'nding  the  adjoin'nments,  holding 
the  accused  under  heavy  liail,  the  excuse  for  the  jiostponenient  heing, 
that  he  did  not  care  to  try  the  case  himsi'lf,  and  neglecting  to  pro- 
cure the  attenilancu  of  any  other  judge  of  the  district  court  to  hold 
the  term  at  which  the  case  could  he  tried;  with  appearing  before  the 
board  of  county  commissioni'rs,  and  in  an  angry  and  threatening  man- 
ner asserted  tiiat  it  would  be  illegal  for  them  to  pay  the  bill  of  a 
deputy  slieritT  for  sulpp(enaing  certain  witnesses,  thus  inducing  the 
board  to  disallow  tlie  bill,  and  afterwards  on  an  appeal  from  the  judg- 
ment of  a  justice's  court  in  favor  of  the  deputy  sheritT  against  the  said 
board  for  tiie  amount  of  the  bill,  falsely  and  erroneously  deciding  that 
the  issue  of  the  snb|)ienas  was  unauthorized  by  law,  and  that  an  order 
had  previously  been  made,  directing  that  none  of  tiie  costs  or  fees  for 
issuing  or  serving  tlie  sulip(eiias  should  lie  paid  by  the  county,  although 
tlie  contrary  was  the  fact;  with  refusing  at  the  conclusion  of  a  term 
to  make  an  order  lixing  tiu^  nuniber  of  dei)utiea  which  were  nocessiiry 
for  the  sherilf  to  have  for  attendance  nixm  such  term,  although  he  had 
previously  I'l'coyini/.ed  and  actjuiesced  in  the  attendance  of  a  deputy; 
with  publicly  insulting  in  open  court  the  sptcial  deputy  when  he  applied 


"  Appleton's  Aunual  EncyolopuDilia  for  1873,  pp.  508,  509. 


APT.] 


MINN'KSOTA. 


701 


for  ilio  order,  !uv\  with  thus  pri'vc'ntiiijr  tlie  pnyinent  of  tho  ()(|Hiiy; 
willi  ixMt'iiiptorlly  and  thronteniiijily  ('0111)111111(1111^1;  a  dcpiiiy  hIici  ill.  in 
the  pri'sciici' of  llu'  irniiid  jury  imd  a  iiiiinlior  of  otlicr  persons  in  alliiui- 
iiiice  upon  11  torin  of  court,  to  pay  over  to  the  clerk  of  the  court  tiie  huiii 
which  lio  Imd  letaliicd  for  his  fees,  without  jiivliij;  liliii  a  hoarliii;,  and 
thus  coinpellinti;  hlui  to  pay  over  siioli  fees,  al  the  same  time  repriiuand- 
iii;;  tlie  deputy  and  ■.ircusinii  him  of  hnViim  retained  ille;;al  fees,  ami 
threatening!;  that  he  would  Heriou^ly  punish  lilni  if  he  took  any  llieijal  fees 
a}{aln  ;  "with  needlessly,  nialieioiisly  and  uiiiawfuUy,  and  with  iateut 
thereliyto  foment  dlsturha nee  among  the  iiihaliltants"of  a  certain  county, 
and  in  particular  amoiij:  tiiose  of  a  certain  villaire  in  sail  county,  and 
with  a  furtlier  Intent  to  insult  and  huiiiiliale  the  sheriir,  writing  and 
causing  to  be  delivered  to  the  sheriff  two  orders,  one  direding  lilni  to 
"disperse  any  noisy,  tuinultuous  or  riotous  assemblage  of  iiersons 
nunibering  thirty  or  more,  or  a  less  number,  if  any  of  them  are  arii'ed, 
found  anywhere  within  tlie  limits  of  your  county,"  also  a  letter 
repriinanding  him  for  not  having  acted  sooner  in  tho  matter ;  witli 
maliciously  attempting  to  persuaile  a  grand  jury  to  Indict  a  county 
treasurer  who  had  comiiiltted  no  crime,  and  when  he  failed  in  that  pur- 
pose, directing  the  county  attorney  to  prefer  a  charge  against  the  county 
treasuver,  arresting  him  upon  such  charges,  coni])elliiig  him  to  give 
bail,  to  apiiear  at  the  next  term  of  court;  and  "during  tlie  proceedings 
the  said  Page,  as  such  judge,  maliciously  and  without  ijrovocatloii  .spoke 
to  and  treated  the  county  treasurer  in  a  very  Insulting  and  uiibecoin- 
ing  manner,  and  in  partienlar  accused  the  said  county  treasurer  of 
having  in  other  places  and  upon  other  occasions  talked  .f  himself,  the 
said  I'age,  in  a  derogatory  way ;"  with  reprimanding  tho  grand  jury 
for  falling  to  liriug  in  an  imlictment  against  tlie  said  county  treasurer; 
with  unlawfully  Issuing  a  warrant  to  arrest  a  pia'ty  for  contempt  of 
court  oil  account  of  publicly  attacking  him  ;  with  requiring  the  attend- 
ance during  the  contempt  jiroceediiigs,  of  aiiumberof  persons  to  testify 
as  to  matters  wholly  irrelevant  to  said  charges  for  the  purpose  of  ascer- 
taining what  jiersons  other  than  the  accused  had  written  and  published 
attacks  upon  the  judge,  and  with  asking  and  compelling  the  answer 
of  a  number  of  irrelevant  questions  designed  for  this  purpose;  and 
with  habitually  demeaning  himself  towards  the  ollicers  of  his  court  and 
towards  the  other  ollicers  of  the  said  county  of  Mower  in  a  malicious, 
arbitrary  and  oppressive  manner,  and  habitually  using  the  powers 
vested  in  him  as  such  judge,  to  annoy  and  oppress  all  other  persons 
who  had  chanced  to  incur  the  ilispleasure  of  him,  the  said  I'age. 

The  respondent  was  acquitted  by  a  majority  vote  in  his  favor  on  all 


702 


STATK    IMPEACHMENT   TIJIALS. 


[AI'P. 


tlie  tli!ir<j;os  but  three,  uiid  iis  to  those  tliiec  charges,  wliicli  related  to 
the  proceedings  against  the  county  treasiu'er  and  the  contempt  proceed- 
ings, liy  a  majority  of  less  than  two-thirds  against  him."" 

In  1881  E.  St.  .Julien  Cox,  judge  of  the  ninth  judicial  district  of  Min- 
nesota, was  impeached,  tried,  and  convicted  before  the  senate  for 
druukeuness  in  the  discharge  of  his  ollicial  duties."' 


NEBRASKA. 

In  1871,  the  first  governor  of  the  State  of  Nebraska.  David  Rutler, 
was  imi)eaehed  and  tried  before  the  State  senate.  The  articles  charged 
him  with  improperly  appr(>i)riating  to  his  own  use  the  sum  of  810.881. 20 
which  he  had  collected  in  the  name  of  the  State  from  the  I'nitcd  States  ; 
with  attemiits  to  olitain  bribes;  with  the  receipt  of  l)ribes  for  iiis 
ollicial  aciiiin  as  ofHcial  member  of  certain  State  boards  and  in  the 
exercise  of  his  executive  powers;  with  falsely  approjjriating  to  his  own 
"nc  the  sum  of  one  thousand  dollars  for  which  a  warrant  had  been 
issued  to  pay  the  fees  due  an  attorney  for  tlie  Stat  with  unlawfully 
and  corruptly  entering  into  a  contract  with  an  insoh\  .re  for  the  comple- 
tion of  the  State  lunatic  asylum,  and  with  willfully  and  recklessly 
assenting  and  becoming  a  party  to  a  contr"ct  for  the  erection  of  the 
State  university  antt  agricultural  college,  at  jirices  greatly  in  ex- 
cess of  the  sums  appropriated  for  the  said  buildings  ;  with  a  false  com- 
munication to  the  house  of  representatives  concerning  the  investment  of 
the  UK  ',ey  collected  from  the  United  States  which  he  was  charged  with 
having  approiiriated  to  his  own  use;  with  unlawfully  and  willfully 
advising  and  consenting  to  the  loaning  of  the  State  funds  and  causing 
the  same  to  be  loaned,  inii)n)vidontly  and  willfully,  without  good  author- 
ity of  the  law  ami  regard  to  tin  pulilic  inteicsts.  upon  totally  insudicicnt 
and  ina(le(|U:ite  security,  and  without  the  concurrent  action  thereon  by 
the  treasurer  and  auditor  of  the  State,  as  was  recjuired  by  law:  with 
api)ropri:iting  to  his  own  use  the  sum  of  $0  IM.  b'i  a  balance  in  tiie  hands 
of  the  treasuier  of  the  board  of  innnigration,  which  was  the  propeity  of 
the  State ;  w'th  unlawfully  executing  and  causing  to  be  delivered  to  the 
Sioux  (  ity  and  Pacific  Uailroad  Company  a  patent  or  patents  for  lands 


!■«  Twentieth  Session,  1H7K.  .Touriml 
of  the  Senate  of  Minnesota,  silting  as 
a.  HiK'i  Coiiit  ot  Iin|H'ii('linieJit  for  IIik 
Trial  ot  Hon.  Slieniiiin  I'aj,'!",  Juilj,'!'  (it 
Tendi  JiiiliiMal  Pistrict,  Vol.  i.  Printed 
bv  Aiitlioiity.  Itainnli'v  mid  C'linnint,'- 
liani,  Siiiiit  Piiiil.  3  vdliiiiies.  Vol.  i, 
pp.  784 ;  vol.  il,  pp.  549 ;  vol.  ill,  pp.  3H\). 


''  Journal  of  the  Soiialn  of  Mliiiie- 
Hotn,  siltinn  as  a  HiKli  Court  of  Iin- 
])eai'liiiHMiL  for  the  Trial  ot  lion.  E.  St. 
.Tiilii'Pi  Cox,  .Iiid){i'  of  tlie  Ninth  .ludl- 
I'idl  District.  Printed  liy  Authority. 
SI.  Piiul  Printing  House,  ().  ft.  Slilli'r, 
;!C  E.  3d  St.  1HH2.  3  volumes,  jip. 
1000. 


AIM-.] 


NKllIIA.SKA. 


70^ 


of  tlu!  Stiite  ;  and  with  selling  certain  State  lands  and  appropriating  to  his 
own  usi!  part  of  tile  piircliase  uiont-y.  Governor  liutler  was  ao(|iiittod 
In*  citliur  a  majority  vote  of  not  jiiiilty  or  a  vote  of  less  than  two-thirds 
of  ifuilty  MS  to  all  tlio  artii'los  cxct'pt  tlie  lirst,  wliicii  chsirgcd  iiiiii  with 
api)nipriatinji;  to  liis  own  use  SKJ.HKl.iO  wliicli  liad  heon  collected  for 
the  state  of  Nebraska  from  the  United  States.  As  to  that  his  defense 
was  an  attempt  to  prove  that  the  money  had  been  paid  into  the  State 
treasinw  and  afterwards  loaned  to  liim  upon  honds  and  mortgages  on 
his  own  property.  Tiie  testimony  shows  a  remarkable  metliod  of  keep- 
ing the  public  funds.  The  .State  treasurer  was  a  member  of  a  Iiimking 
firm  and  at  lirsl  ki^pt  the  trcasiu'y  in  an  old-fashioned  fire-proof  safe, 
but  afterwards,  in  i)Mrstiance  of  an  iict  of  the  legislature,  bouglit  a  Her- 
ring luuglar-iiroof  safe  at  a  cost  of  one  tliousand  dollars.  In  tiiat  he 
kept  both  tlie  private  funds  of  his  firm  and  the  public  funds.  The 
"uliiic  funds  were  supposed  to  be  kept  in  separate  envelopes  ;  but  a 
large  part  of  tiiem  wiM'c  mingled  with  tlie  ])rivate  funds  of  the  firm  and 
credited  upon  its  books  to  tiie  fictitious  name  of  Joim  Hix.  Tlie  ollicial 
books  of  the  treasury  showed  no  trace  of  the  money  which  the  governor 
had  coUectcil  from  the  United  States.  The  governor  chiimed,  however, 
that  it  had  lieeu  duly  ]):ii(l  to  the  treasurer,  credited  to  the  name  of  .John 
Uix,  and  subseipiently  loaned  to  him.  This  defense  wus  overruled  by  the 
senate,  which  by  a  majority  of  more  than  two-thirds  found  him  guilty 
under  the  first  article  of  impeachment.  The  sentence  was  renif)val  from 
ollice.      Members  of  both  the  political  parties  voteil  for  conviction."' 

In  ilie  same  year  that  (Jovernor  Butler  was  impeached,  the  Nebraska 
house  of  representatives  voted  to  iini)each  John  Gillespie,  State  auditor 
of  Nebraska.  The  articles  charged  him  with  delivering  warriuits  against 
the  State  funds  williout  having  first  received  the  leg;d  vouchers  then.'for, 
and  in  cases  in  which  the  State  was  not  indebted,  giving  as  a  specifica- 
tion the  jiayment  to  Governor  Butler  of  the  State  warrants  for  the  fees 
of  an  attorney  which  was  the  subject  of  one  of  the  ar*i"les  of  Butler's 
impeaciiment ;  with  unhiwfidly,  corruptly,  and  in  violatio.;  of  a  section  of 
the  State  constitution,  agreeing  and  consenting  to  the  iiayment  of  extra 
compensation  to  a  contractor  for  the  erection  of  the  State  lunatic  asylum 
above  the  amount  slipuliited  to  be  pai<l  for  the  building;  with  dis- 
regarding and  setting  at  naught  a  law  wliich  recpiired  him  to  direct  pros- 
ecutions, in  the  name  of  the  State,  for  all  possible  delinquencies  in 


"s  Impeiicfiiiii'iil  Triiitof  Daviil  lint-  .loli  riinliii;;    House:    1871.     pp.   133, 

ler,  Govcnmr  of  Xi'ijrasfin,  lit  Lliu'olii,  Closiiii;    Arniiniciits,    i)|i.    8H.      Tiial 

Miiroh,  lliiy  anil  .(imc,  1H71.     Mi'ssrs.  I'rocci'diinis,  pp.  ('.5.     Hcuiile  rrocccif- 

Betl,  Hal'  A  Uiown,  Olllciiil  lieporlors,  \uii!^.  jip-  -W.    See  also  Nobriislfa House 

Oaialiii.      Tribuuo    Sloum  liouk    uud  Joiiruul  for  1871-1872,  pp.  828. 


704 


STATE   IMPEACHMENT   TRIALS. 


[AI'P, 


relation  to  the  assessment,  collection  and  payment  of  the  revenue,  and 
against  all  persons  who  might  liy  any  means  lieeonie  possessed  of  any 
pul)lic  moneys  or  property  due  or  l)elonging  to  the  State,  and  fail  to  ]>:<\ 
over  or  deliver  tlie  same,  and  also  to  give  information  in  writing  to  cilliL'r 
house  of  tlie  Icgislaliire  iii  regard  to  any  duty  of  iiis  olliee.  giving  as  a 
speeilieation  tlie  failure  to  collect  the  sum  «)f  •Sl'i.'^'^l  •-',  wliich  was  col- 
lected and  retained  by  (ii)veruor  ISutlcr.  as  charged  in  the  hitter's  im- 
peaelnnent  :  with  unlawfully  ordering  and  ajiproviug  cif  certain  loans  of 
the  school-money  at  less  interest  than  might  have  lieen  collected  for  the 
use  of  the  same  :  with  opening  ime  of  the  sealed  bids  fur  the  public  print- 
ing, and  disclosing  to  another  bidder  the  estimates  of  the  saiue,  so  as  to 
enable  him  to  so  alter  his  liid  as  to  secure  the  contract;  with  being  in- 
ihieneed  by  pecuniary  motives  to  agree  Iti  his  olllcial  capacity  to  an  nn- 
siiitable  location  for  the  State  hiiatic  asylum  ;  and  with  making  a  false  entry 
in  his  accounts,  stating  tlie  ree  'ipt  of  810^2.10,  and  the  jiayment  thereof 
il|)on  a  warrant  for  trees  for  the  >■•<•':!. /l  grounds,  when  in  fact  no  such 
money  was  received  or  ]iaid.  but  the  trees  were  furnished  for  the  indi- 
vidual benefit  of  the  respondent,  (ioveruor  Hiitler  and  another  olliccr,  so 
as  to  make  up  the  deficiency  in  the  proceeds  of  the  sale  of  certain  public 
lands. 

This  imiieachment  was  never  tried,  hut  in  the  following  year,  1S72, 
was  withdrawn  by  the  succeeding  house  of  representatives."'' 

In  IHli;!.  the  legislatin'e  of  Nebraska  presented  to  the  supreme  court 
articles  agaii;  t  William  l.eese.  who  had  been  formerly  attorney-general. 
They  were  dismissed  uixin  the  ground  that  no  impeachment  could  be 
sustained  against  a  man  who  was  not  in  ofllce.""  In  the  same  year,  the 
legislature  presented  articles  against  (Jeorge  Hastings,  !ittorney-gen- 
eral,  .IdIiii  C.  .Mh'ii.  secretary  of  state,  and  Augustine  \l.  Iliiniphrey, 
commissioner  of  i)ublie  lands  and  buildings.  Tiiev  charged  misconduct 
by  (he  respoiiih'iits  when  actir.g  as  a  hoard  of  public  lands  and  buildings 
liy  th'  \,:iste  and  misappropriation  to  their  own  use  of  public  funds  ai-  ' 
ne^ligeiiee  ill  the  payment  of  fraudulent  claims  for  supplies,  cliieliy  in 
connection  with  the  construction  of  a  cell-house  in  a  penitentiary  and 
the  sii|iervision  of  the  maintenance  of  an  insane  asyhini.  It  api)eared 
that  they  hacl  by  the  advice  of  the  attorney-general  used  live  hundred 
dollars  of  an  aiipropriation  for  the  construction  of  a  ci'll-house  in  pay- 
ment of  their  own  expenses  u|ion  a  junketing  trip  to  visit  prisons  in  otiier 
States,  and  two  hundred  dolhi's  to  ])ay  the  expenses  of  the  v.arden  and 
chaplain  of  the  prison  as  delegates  to  the  National  Prison  Congress  at 

»»  House    Jdiirnal   of    the   (teiionil  m  Stale    of    Nelmiska    r.    William 

Assenilily  of  (iie  Stiile  of  Nelirasltii,  Leese,  Ex-.\ttoniey-Gonerul,  37  Neb., 
for  1871-1872.     pp.  828.  U2. 


ATI'.] 


KANSAS. 


705 


IMiiliulolphia.  A  majority,  two  of  tho  court,  acquitted  all  the  respon- 
dents for  lack  of  proof  of  a  criminal  intent.  The  chief-justice  dissented 
in  a  strong  opinion."' 

KANSAS. 

A  painful  exposure  of  the  corruption  which  existed  during  the  civil 
war  was  ni.ide  on  the  trial  of  the  governor,  secretary  of  state,  and 
auditor  of  the  .State  of  Kan.sas  lieforo  the  senate  on  their  impeachment 
by  the  house  of  representatives  in  18(;2.  The  first  legislatnre  of  the 
State  a\ithorizcd  the  issue  of  bonds  to  the  amount  of  SloO.OOO  to  defray 
tlie  current  expenses.  Tiieso  olllcers  were  a\ithorized  to  negotiate  for 
their  sale.  The  only  probable  customer  at  tliat  time,  the  summer  of 
1H()1,  was  the  government  of  tho  United  .States,  who  were  authorized 
to  invest  certain  sums  of  morey  held  l)y  it  in  trust  for  Indians  under 
different  treaties  "  in  safe  and  profitaole  stocks."  The  Kansas  secretary 
of  state  and  auditor  employed  Robert  Stevens,  a  leading  Kansas  poli- 
tician, to  negotiate  tlie  sale  of  these  bonds.  His  employnn  lit  was  ad- 
vised by  senator  Pomeroy  of  Kansas,  because  of  his  business  relations 
with  Caleb  H.  Smith,  secretary  of  the  interior  of  the  United  Stales. "' 

Tlie  accused  secretary  of  state  testified  :  '•  I  bad  di'linite  informa- 
tion, but  owing  to  the  character  of  those  assistii,;;;  Mr.  Stevens,  1 
thought  his  expenses  nuist  be  heavy  indeed.  Any  gi  iitlenmri  who  will 
go  to  Wasliington  on  similar  Imsiness  will  be  satisfied  of  that  I'm'I.'    ' 

Stevens  first  attempted  to  sell  tiie  bonds  to  tlie  United  States  lluoiigh 
the  secretary  of  tlie  interior,  but  failed.  lie  then  employed  to  assist  liii' 
in  the  negotiation,  R.  (i.  Corwin  of  Dayton,  Ohio,  who  was  conuccti'd 
by  marriage  with  the  secretary  of  the  interior.  Corwin  was  then  en- 
gaged as  a  claim-agent  in  Washington  iiofore  the  War  and  Interior  De- 
partments.'* Corwin  succeeded  in  arranging  that  the  bonds  should  be 
bought,  provided  the  entire  Kansas  delegation  at  Washington  advised 
the  purchase  in  writing."'*  All  of  tiie  delegation  with  one  exception 
were  persuaded  to  recommend  the  purchase.  Senator  Lane  refused  to 
sigii,  s.'iying  that  he  exi)ected  to  be  a  candidate  for  a  re-election  to  the 
Semiie  before  the  State  legislature  ;  that  he  had  a  majority  of  one  in 
the  Stite  senate,  and  he  feared  lest,  if  Stevens  had  the  money,  the  lalti'r 


"'  Slate  of  Nolirnska  r.  GenrRe  H. 
Hastings,  Altiinicy-Geni'rnI,  .Tnhn  C. 
Allen,  Secretary  of  Slnte,  and  Augus- 
tine L.  Huinplirey,  roniinissioiHM'  of 
Piililic  Liiuds  anil  I5iiiWlugs,  ;)7  Neb., 
96. 

9-  Proi.'oedlngs  In  easos  of  tin'  Iin- 
peaehmcut  of  Charles  llobiusou,  Gov- 


ernor; .John  W.  Ttoliinson,  Secretary 
(ifSlnto;  (ri'orgcS.  lliUycr,  Aiulitorof 
State  of  Kansas.  Lawrence:  Kansas 
State  .lournal  Stenni  Press,  1H02.  pp. 
484. 

M  Ibid.,  p.  38fi. 

9<  Ibid.,  i>p.  a.')!!,  2.")S,  iG'i. 

»» Ibid.,  pp.  154.  107. 


Ul 


1 06 


STATK    .SiPEACHMENT   TKIALS. 


[app. 


would  liiu-  uj)  enough  votes  to  defeat  him  and  elect  himself."  One 
tliousiuid  dollars  were  paid  to  Lane's  private  secretary  to  procure  tlie 
senator's  sii;natiire  to  a  letter  reeoinmendiug  the  purchase,  which  sig- 
nature was  .subscciuoiitly  procured  through  the  private  secretary,  by  a 
misrejjrcsentatiou  as  to  tiie  character  of  the  letter  signed."  Bonds 
to  tile  amount  of  $5G,000  were  sold  to  the  United  States  accordingly 
at  eighty-live  per  centum  on  their  amount.  The  State  only  received 
sixty  iier  cent.  Tlie  remainder  was  retained  by  Stevens.  With  whom 
he  divided  did  not  appear.  At  the  same  time  certain  State  bonds  held 
by  tlie  auditor  and  secretary  of  state  were  sold  to  the  government  of  the 
United  States  in  tlie  same  lot,  at  the  same  i)rice,  and  seventy  cents  on 
the  dollar  was  paid  to  their  owners  for  the  same. 

John  W.  l{ol)inson,  state  secretary  of  state,  and  (leorge  S.  Ilillyer, 
statu  auditor,  were  convicted  on  the  article  of  impeaehniont  charging 
these  facts,  and  sentenced  to  a  'cnioval  from  otiice,  but  not  to  disiiuali- 
fication."^  The  ifDvernor,  Cliarlcs  Robin.son,  was  acquitted  upon  tlie 
grounJ  that  there  was  no  evidence  of  his  complicity  in  the  act."" 

Other  articles  of  impeachment  were  presented  against  the  same  three 
ollicers,  charging  other  offenses  coniiocted  with  tiie  sale  of  the  same 
bonds,  and  in  the  case  of  the  secretary  of  state,  cliargiiig  him  with 
autliorizing  a  public  advertisement  in  a  pretended  county  newspaper 
which  was  not  in  fact  pulilislied  in  such  county,  in  countersigning  certain 
lioiids,  and  in  authorizing  the  witiidrawal  of  a  bid  fur  public  i)riiitiiig 
after  its  acceptance.     They  were  acipiitted  on  all  of  these. 

After  the  conviction  of  the  .secretary  of  state,  it  was  charged  tliat 
one  of  the  senators  had  endeavored  to  obtain  a  bril)e  of  three  thousand 
dollars  in  return  for  his  vote  for  an  acquittal.  An  investigation  was 
ordered.  The  editor  of  the  'i'  ipcka  "Tribune  "  testilied  that  on  the  (biy 
before  tlie  final  vote  he  was  ajiproached  by  a  member  of  the  senate  who 
told  that  there  were  seventeen  senators  ready  to  vote  to  impeach  Joim 
W.  Uobinson  ;  that  if  the  speaker  votoil  iii  favor  of  the  ac(iuittal,  other 
senators  would  go  with  liiin  ;  and  tliat  if  he  was  paid  ;<,"), 000  in  cash,  he 
would  vote  "  not  guilty."  The  witness  had  in  his  poci;et  about  8 1.5(i0  iu 
scrip  and  offered  the  senator  S'2,000.  SulisiMpiently,  the  witness  talked 
to  one  of  the  respondent's  attorneys,  saying:  '•  I  had  offered  so  much 
money  on  my  own  responsibility,  an<l  tiiat  afterwards  I  would  cxjiect  to 
have  the  money  returned,  if  none  was  iianded  to  me  before."  On  the 
day  when  tlio  vote  took  place,  lietween  tlie  i  'ruing  and  afternoon  ses- 
sions, he  again  met  the  senator  and  told  him  tliat  he  might  draw  on  him 
for  $3,000  if  he  wished  for  his  vote,  but  the  si'uator  replied  :  "  It  is  too 


»«Ibicl.,  pp.  ur,,  ir.O. 
»'  Ibid.,  pp.  110,  147,  15-t. 


»«  Iliiil.,  pp.  318,  349,  392,  396. 
^  Ibid.,  pp.  392,  425. 


API'.] 


KANSAS. 


707 


liitu."  The  senator  liad  also  told  liliii  that  he  could  get  an  oflli'O  under 
the  general  government  worth  S2,0UU,  in  caso  lie  voted  for  tlio  eonvittion 
of  .lohu  W.  Robinson,  wiiieh  would  be  ol>tuined  thnjugli  Senator  I.ane. 
The  witness  refused  to  state  tlie  name  of  tiie  senator  with  whom  he 
had  the  conversation.  Each  of  the  senators  who  was  present  testified 
tl'-ii,  ha  had  no  sucii  conversation.  Thereupon  it  was  v(jted,  "that  it 
was  the  opinion  of  the  senate  tiiat  the  chai'iics  against  the  meniljers  of 
this  body  of  corruption  are  untrue,  and  that  no  further  action  be  taken 
in  the  premises."  Tiie  witness  was  then  dischsirged,  without  any  at- 
tempt to  compel  him  to  disclose  the  senator's  name."" 

In  18111,  Tlieodosius  Hotkin,  judge  of  the  thirty-second  judicial 
district,  was  impeached  by  the  house  of  representatives  and  tried  before 
the  senate  of  Kansas.  The  articles  charged  him  witli  habitual  and  re- 
peated drunkenness  both  on  and  off  tlie  bencli ;  witii  tiie  ilU'gal  purchase 
of  intoxicating  liquors  and  frequenting  "  drug-stores  "  wiiere  he  knew 
that  liquor  was  sold  in  violation  of  the  law ;  with  blasphemy  in  a  so- 
called  "drug  store";  with  unlawful  imprisonment  in  a  proceeding 
to  punish  as  a  contempt  the  circulation  of  a  petition  for  liis  impeach- 
ment which  made  similar  charges  to  tliose  contnined  in  the  otiier  articles  ; 
with  issuing  "  a  lictitious  or  fraudulent  warrant  of  arrest,"  witliout  any 
sworn  coni|)laint  such  as  tlie  law  recpiired ;  witii  ordering  a  court  ste- 
nogr:ii)iier  to  erase  from  liis  notes  an  excejition  t;iken  on  a  trial;  and 
with  being  party  to  a  corrupt  conspiracy  for  tlie  robbery  of  a  city  treas- 
ury, wherein,  without  any  statutory  authority,  he  appointed  "  a  receiver 
of  tli(!  city  treasury,  which  contained  less  than  S7,7;')i)-j9fij,"  recom- 
mended the  city  council  to  employ  a  certain  attorney  to  represent  them 
in  the  litigation,  at  midnight  signed  an  order  directing  the  payment  by 
the  receiver  of  81,000  to  the  attorney,  which  the  council  had  voted  an 
hour  before  to  pay  him  for  his  services'  exhausted  the  balance  left  in 
the  treasury  by  other  illegal  warrants  -vliich  he  approved,  and  then  dis- 
charged the  receiversliip.  The  trial  is  interesting  from  the  picture  it 
gives  of  the  State  of  civilization  in  Kansas  and  the  condition  of  drug- 
stores in  a  prohibition  State.  Demurrers  were  sustained  to  the  articles 
which  charged  drunkenness  when  not  engaged  in  his  olilcial  duties,  the 
illegal  purchase  of  intoxicating  li(iuor,  and  the  frequenting  of  places 
where  he  knew  that  liquor  was  illegally  sold.""  The  acts  charged 
were  s'lbstantially  proved,  leaving  the  intent  of  the  accused  the  sole 
question  in  issue,  except  as  regards  the  drunkenness  and  blasphemy, 
concerning  which  the  evidence  was  contlicting.  The  main  point 
on  which  the  counsel  for  the  respondent  relied,  wliich  was  reiterated 


I  IbiU.,  pp.  3.54-370. 


Supra,  §  93. 


708 


STATE   niPEACHMENT   TRIALS. 


[APP. 


tlii'oiit!;liout  tlie  exainiuiition  of  wituosses  anil  the  arguments,  was  that 
Botkin  was  a  Republican,  as  were  also  a  majority  of  the  senate,  anil  that 
the  inipoachiiieut  was  voteil  by  the  members  of  the  Farmers'  Alliance  in 
the  liiv.cr  lioiisi'.  The  attorney  to  whom  the  judge  gave  the  four  thou- 
saiiil  iliilhiiii  from  the  city  treasury  was  not  only  a  witness  but  the  lead- 
ing coiiiisi!l  for  the  respondent,  and  the  coarseness  of  his  cross-examina- 
tions and  speeehea  throughout  tlie  case,  which  were  unchecked  by  the 
senate,  illustrate  the  character  of  the  court.  The  respondent  was  ac- 
quitted by  a  majority,  and  in  some  cases  by  a  unanimous  vote  of  "  not 
guilty  "  on  the  articli's  cliarijing  drunkenness  and  blasphemy.  On  the 
other  articles  the  votes  stood  eighteen  to  sixteen  and  eighteen  to  seven- 
teen against  him ;  and  as  two-thirds  failed  to  vote  for  conviction  he 
was  finally  acquitted.'" 

IOWA. 

In  1880,  ,Iohn  L.  Brown,  auditor  of  the  State  of  Iowa  was  impeached, 
tried  and  acquitted  by  the  State  senate.  The  articles  charged  a  failure 
to  keep  proper  accounts  and  to  make  reports  of  the  fees  collected  by 
him  from  insurance  coinpanies,  banks  and  others;  iuducemeut  by  a 
bribe  of  one  hundred  dollars  to  omit  to  direct  the  attorney-general  to 
Institutfc  oroceedings  for  the  appointment  of  a  receiver  of  an  insolvent 
bank  ;  certifying  that  that  bank  was  solvent ;  drawing  and  collecting  and 
issuing  warri.uts  on  the  treasurer  without  vouchers;  refusing  to  obey 
au  order  by  \he  governor  suspending  him  from  olllce;  continuing  to 
exercise  the  f  notions  of  his  olllce  after  such  suspension ;  refusing  to 
allow  the  gov  ;rnor  to  inspect  bis  books  ;  allowing  to  act  as  his  (le[iuty 
a  man  whose  appointmei\t  the  governor  had  refused  to  approve  ;  p.aying 
such  deputy  a  salary  and  money  beyond  his  salary  by  warrants  on  the 
State  treasury;  and  compelling  the  payment  to  himself  and  his  deputy 
of  illegal  fees  by  banks  and  insurance  companies  which  were  subject  to 
his  suspension. '"^ 

MISSOURI. 

In  Missouri  there  h.ave  been  three  impeachments.  In  182C,  Richard 
S.  Thomas,  a  circuit  judge,  was  impeached,  convicted  and  removed. 


'"■i  Daily  .T.iuraal  of  the  Si-iinte  Trial 
of  TlicodosiiiB  IJolkiii,  .Iiiil},'!^  of  tlio 
32<l.Jiiilicial  District,  IxforctlK!  Senate 
of  tlie  Stale  of  Kansas,  on  Ini|ioacli- 
mont-  hyllie  IXousedf  Kcprescutatives, 
fcir  Misili'incanora  in  Olllce.  April, 
IH'.il.  rublislied  by  onlor  of  tlio 
Senate.     Topoka,  Kansas,  Publishing 


House;  Clifford  C.  Rowker,  State  Prin- 
ter, ]8!»1.  Volmni'si  ami  ii.  jip.  14'i6. 
1"' .Jonriial  of  tliu  Senate  of  Iowa, 
sitting!  as  a  I'ourt  of  Inipoaeliniont  for 
the  Trial  of  .Jdlui  L.  Drown,  Auditor  of 
State.  D<'s  Moi'.es:  Iowa  Printing 
Ck)nipany,  1880.     pp.  2610. 


AIM'.] 


Missouni. 


709 


lie  li;i(l  rcfiiseil  to  recognize  tlie  rightful  eleriv  of  iiis  court  uiuler  the 
Ijroteiise  that  the  iidoption  of  certain  aniendnieuts  to  tlie  State  constitu- 
tion liad  vacated  tlie  olllce  ;  liad  put  his  own  son  iu  the  place  of  the  clerk  ; 
had  refused  to  hold  court  until  the  clerk  had  surrendered  the  papers  to 
his  son  ;  and  had  thus  forced  him  to  resign.  Thia  conduct  was  the  snbject 
of  two  articles  of  the  inipeachnient.  The  third  article  charged  him 
with  becoming  security  on  an  appeal  l)y  his  son  to  Ids  own  court  from 
the  judgment  of  a  justice  of  the  peace;  ordering  of  his  own  motion  a 
change  of  venue  of  the  appeal  without  the  request  or  consent  of  either 
party;  and  when  the  court  In  which  the  venue  had  been  changed  sent 
it  back  for  want  of  jurisdiction,  adjourning  the  trial  from  term  to  term 
of  his  own  motion  without  the  consent  of  the  parly  who  had  recovered 
judgment  against  his  son  below.  The  fourtii  article  chargcil,  that,  while 
a  warrant  was  out  on  a  cliarge  of  murder,  lie  agreed  with  the  counsel 
for  the  accused  that  the  latter,  if  he  surrendered,  should  be  admitted  to 
bail,  and  that  no  testimony  should  be  taken  against  him ;  and  that  he 
fulfilled  this  promise  and  discharged  the  accused  on  bail  after  his  sur- 
render, declaring  tiiat  it  was  not  his  business  to  procure  the  attendance 
of  witnesses,  although  he  well  knew  that  several  witnesses  acquainted 
with  the  facts  lived  within  a  short  distance,  and  that  their  attendance 
could  be  procured  within  a  short  time.  Judge  Thomas  was  convicted 
on  all  these  articles.'" 

In  IHU'J,  the  State  house  of  rejiresentatives,  by  a  vote  of  seventy- 
nine  to  thirty-four,  impeaclied  Albert  Jackson,  a  circuit  judge.  The 
main  articles  of  impeachment  charged  tliat  he  was  guilty  of  insulting, 
oppressive  and  tyrannical  conduct  towards  parties  and  counsel ;  had 
imposed  illegal  iniprisonment ;  had  refused  the  writ  of  habeas  corpus  ; 
had  advised  parties  and  counsel  out  of  court  in  regard  to  cases  which 
afterwards  came  before  him  —  in  one  case  advising  a  young  attorney  to 
procure  a  retainer  upon  a  conlingent  fee  to  det'cnil  a  case  on  a  point  which 
he  suggested  and  afterwards  sustained  ;  that  he  had  refused  to  give  fair 
billsof  exceptions;  that  he  had  improperly  interfered  with  a  grand  jury 
to  prevent  his  own  indiclinent  for  gaming  ;  and  that  he  had  been  guilty  of 
gross  partiality  on  several  trials  both  criminal  and  civil,  in  one  of  wliich 
the  defendant  was  convicted  of  murder,  where  he  had  also  refused  a  fair 
bill  of  exceptions.  One  of  the  managers  was  James  Proctor  Knott  who 
afterwards  gained  celebrity  by  his  speech  in  Congress  on  Dulutli.  His 
speeches  on  this  trial,  although  florid,   are  forcible,  logical  and  well 


10*  Tlio  writer  lias  boon  nbl3  to  find 
no  report  of  tlil«  trial.  The  arth'lcs 
may    bo  found    in    tlio  argumeul  of 


SIuna)i(>r  Charles  IT.  Hardin,  in  Jack- 
son's Iiu|i(.'iichiiii'nt  Trial,  riiblio  Prin- 
ter, JofCt'rsou  City  ;  pp.  33G-337. 


710 


STATE   nil'KAOFtMENT   TUIALS. 


[Al'f. 


worth  rea(liu;j;.  'I'lio  jiiilni!  defeiitU'd  himself  in  person.  His  answer  is 
ii  model  of  tcehnicid  pleading;.  Jt  even  contained  this  traverse  :  '•  Said 
.laekson  does  not  know  that  the  experience  of  ages  has  demonritratcd 
that  the  writ  of  huOfds  Cdrjiiai  is  one  of  the  chief  bidwarks  of  the  lilierty 
of  the  people ;  joins  issue  and  takes  the  negative  of  that  proposition." 
The  i)rincipal  facts  alleged  in  the  articles  were  proved  by  uncoutradictetl 
evidence,  leaving  the  intention  of  the  accused  the  main  matter  in  doubt. 
His  evidence  consisted  mostly  of  laymen  on  his  circuit  who  had  not 
thought  his  judicial  manners  oppressive,  contumelious  and  insidting. 
His  defense  was  able,  but  his  language  throughout  the  trial  showed  that 
his  temper  unfitted  him  for  a  judicial  position.  A  majority,  l)ut  less 
than  two-thirds,  all  of  whom  apparentlj'  were  Democrats,  voted  for  his 
conviction  on  the  principal  articles.  The  minority  was  almost,  if  not 
quite  entirely,  composed  of  the  members  of  the  political  party  in  oppo- 
sition, to  which  he  apparently  belonged  ;  and  they  attempted  to  prevent 
the  pulilication  by  the  State  of  the  proceedings."" 

In  1872,  Philander  J^ucas,  judge  of  the  fifth  judicial  circuit  iu  Mis- 
Bouri,  was  impeached  and  tried  before  the  State  senate.  The  articles 
charged  that  he  had  certified  to  bills  of  costs  in  blank  against  a  county 
in  his  circuit,  allowing  the  clerk  to  fill  them  in;  that  he  had  certified 
to  fraudulent  charges  in  othc-  bills  of  costs ;  had  with  a  reckless  disre- 
gard of  the  public  interests  iiii'i  for  the  purpose  of  assisting  a  friend, 
dismissed  at  the  defendant's  costs  a  prosecution  for  selling  liquor  with- 
out a  license ;  and  had  connived  at  and  i)erinitted  a  practice  Ity  the 
circuit  attorney  of  multiplying  indictments  against  insolvents  who  were 
unable  to  pay  the  costs,  and  iu  permitting  and  ordering  attachmenta 
against  witnesses  whom  lie  knew  to  be  present,  for  the  purpose  of  niulti- 
plyiiig  the  attorney's  fees.  The  respondent  answered  and  defended. 
The  articles  were  withdrawn  at  the  conclusion  of  the  evidence  offered 
in  their  support.'"' 

CALIFORNIA. 

In  18,51,  Stephen  J.  Field,  afterwards  a  .Justice  of  the  Supreme  Court 
of  the  United  States,  and  other  members  of  the  bar,  presented  to  tlie 


""*  OffU-inl  Report  of  the  Trial  of  the 
Hon.  Albert  Jackson,  JiuIko  of  tlie 
Fift-eonlh  Juilioial  Circuit,  bcfuio  the 
Senate,  composing  llio  Ilifjh  Couitof 
Iinpoiicliiiieiitof  tlie  Stntoof  Jlisj-omi. 
Reported  bv  Thomas  .T.  HeiulerHon. 
Jefferson  City :  W.  G.  Cheoney,  Public 
Printer,  1859;  pp.  480. 


'»»  omclal  Report  of  tlio  Trial  of 
rhilaiider  Lucas,  Judge  of  the  Fifth 
Judicial  Circuit,  before  tlio  Missouri 
Slate  Senate,  silting  as  a  High  Court 
of  Iinpeachiiient,  Juno,  1872.  Jeffer- 
son City :  Regan  &  Edwards,  Public 
Printers,  1872 ;  pp.  323. 


Al'l'.] 


CALIFORNIA. 


711 


('iiliforiiia  assembly  charn;ps  nj^ainst  William  R.  Turner,  jiulfje  of  the 
c'iv'lilli  juclieiiil  district  of  that  State.  The  char<;es  arose  out  of  the 
ctJiiimitiTiont  of  Mr.  Field  for  contempt  of  court  to  an  iinprisoiiineut  of 
f()rty-i'ij;iit  hours  nccompanicd  by  a  fine  of  five  luindred  dollars,  his 
disbiirtnent  for  protesting  and  takiii};  \viin\  proceedings  to  set  aside  this 
profci'ding ;  and  the  similar  treatment  of  two  other  members  of  the  bar 
who  assisted  him  in  the  matter.  jNIr.  Field  was  released  by  habeas 
corpus  immediately  after  his  arrest,  but  .Judge  Turner  had  him  arrested 
again,  threatened  with  commitment  the  judge  who  granted  the  writ,  and 
after  the  attorneys  had  been  restored  to  the  bar  by  a  mandamus  from  a 
higher  court,  attempted  to  again  disbar  tliem.  The  matter  was  com- 
promised by  tiie  passage  of  a,  law  redividing  the  State  into  judicial  dis- 
tricts and  assigning  Judge  Turner  to  another  part  of  the  State.  He 
subsequently  re  tigned  to  avoid  an  impeachment  for  habitual  drunkenness 
and  other  charges.""  1 1  is  experience  in  this  matter  undoubtedly  aided 
iu  impressing  on  the  mind  of  the  sufferer  from  judicial  tyranny  the 
public  importance  of  the  protection  of  the  rights  of  the  bar  which  he 
afterwards  established  by  his  own  decisions  on  the  bench."" 

In  the  same  State,  in  1857,  Henry  Hates,  the  State  treasurer,  was  im- 
peached. The  articles  charged  :  a  conspiracy  with  another  to  defraud 
the  State,  by  which  in  violation  of  the  statutes  he  deposited  part  of  the 
State  funds  with  private  bankers,  who  allowed  his  confederate  the  use  of 
the  money,  and  he  loaned  another  part  directly  to  his  confederate,  who 
failed  to  repay  the  same  to  the  State  ;  the  loss  of  other  funds  of  the  State 
through  negligence  without  an  allegation  of  a  corrupt  intent;  the  pur- 
chase by  himself  and  others  with  his  connivance  of  State  scrip  and 


107  ProceodiuKH  of  Iho  Assi-nilily  of 
the  Slate  of  California.  Si'imhuI  Si's- 
Bion,  1851,  on  the  pi-Ulion  of  cilizcus 
of  Yuba  nuil  Nevada  t'oiinlii's  I'oi-  the 
Impenchniontof  Win.  It.  Tinner, . J iiilgo 
of  tho Eighth  .Iiidieial  Di.sl liel  of  Cali- 
fornia. Jos.  L.  Pearson.  I'rinlur,  187S. 
StateiniMit  of  tlio  Controversy  be- 
tween Judge  William  11.  Turner,  of 
the  Eighth  Judicial  Distiiet  of  Cali- 
fornia, and  members  of  the  Maryvillo 
Bar,  and  their  Reply  to  his  violent 
Attaeks  upon  them.  Second  edition, 
with  an  apiiondi.\. 

Doeunieiits  in  relation  to  charges 
preferred  liy  Stephen  J.  Field  ami 
olliers,  before  tlie  House  of  Assem- 
bly of  the  State  of  California,  against 


Wni.  R.  Turner,  District  Judge  of 
the  Eighth  Judieial  Distriet  of  Cali- 
fornia. California,  IH.Il.  "Trut.i  Is 
omnipotent,  an<l  public  justice  cer- 
tain." Hi>nry  Clay.  Sau  Francisco: 
Wliitton,  Towne  &  Co.,  printers.  Ex- 
celsior Steam  Presses,  No.  151  Clay 
Street,  throe  doors  below  Montgomery. 
lH5(i. 

Pooi)lo  V.  Turner,  1  Cal.,  113;  s.  c, 
1  Cal.,  ir.2;  Kxparli: Viola.  1  Cal.,  187; 
People  V.  Turner,  1  Cal.,  1H8  ;  People  w. 
Turner,  1  Cal.,  !)0. 

i'|»  S(>o  Ex  parte  Garland,  i  Wallace, 
333  ;  hit  parte  Bradley,  7  Wallace,  364  -^ 
Bradley  v.  Fisher,  13  Wallace,  335; 
Ex  parte  Robinson,  19  Wallace,  506. 


712 


STATE  IMPEACHMENT  TRIALS. 


[aI'P. 


warrnnts  with  the  coin  of  the  State;  the  substitution  of  controllci-'s 
wurnuits  for  roin  paid  him  liy  county  treusuiers ;  connivance  at  sinii- 
hir  Biilistitiitions  liy  anotiicr  olllccr;  lioi rowing  money  on  tlie  cieilit  of 
tiie  Slate  to  conceal  tiic  (Iclicicncy  in  llie  trcasiu'y ;  and  a  failure  to  re- 
deem Stale  lionds  uh  re(|uired  liy  hnv.  Tlie  resijondent  plerided  to  tiie 
jurisdiction  in  an  auHwer;  wliicli  alleged  that  his  resii^nation  had  been 
accepted  by  the  {jovernor,  and  that  lie  was  no  longer  in  olllce  when  the 
articles  were  adopted  by  the  assembly,  and  also  that  two  indictments 
had  been  found  against  him  by  a  grand  jury  on  the  charges  alleged  iu 
the  articles.  The  managers  lllcrt  a  replication,  which  alleged  that  the 
respondent  was  treasurer  of  the  State  at  the  time  of  bis  impeachment, 
and  that  if  he  had  been  indicted  as  alleged,  the  indictments  were  found 
after  the  articles  had  bei-n  presented.  To  this,  Kates  filed  a  plea  which 
claimed  that  the  allegations  in  his  answer  which  were  not  denied  by  the 
rei)lication  were  sullicient  to  show  that  the  court  had  no  jurisdiction 
and  prayed  judgment  accordingly.  The  senate  overruled  the  objections 
to  the  jurisdiction  and  ordered  a  further  answer,  which  the  respondent 
refused  to  nu\ke.  He  was  thereupon  convicted  by  default  by  a  vote  of 
thirty-two  to  one ;  and  was  sentenced  to  perpetual  disqualification  from 
odice  in  a  judgment  which  recited  the  fact  that  he  had  resigned  after 
his  impeachment.'™ 

In  1862,  James  II,  Hardy,  jndge  of  the  sixteenth  judicial  district, 
was  imiieaclied  before  and  convicted  liy  the  senate  of  the  State  of  Cali- 
fornia. The  articles  charged  him  with  a  number  of  corrupt  decisions 
for  the  benefit  of  his  friends,  no  charge  of  bribery  being  made.  The 
principal  ones  were  alleged  to  have  been  made  for  the  purpose  of  de- 
laying litigation,  and  thus  enabling  the  defendants  to  compromise.  He 
was  abo  charged  with  having  advised  counsel  outSiide  of  court  as  to  the 
couise  which  they  should  take,  and  the  decisions  which  be  expected  to 
make;  thus  in  one  case  misleading  a  counsel  so  far  as  to  prevent  him 
from  tiling  an  argument  against  a  motion  for  a  new  trial  which  the 
judge  said  jirivately  to  him  would  be  denied,  but  afterwards  granted. 
The  most  serious  charge  was  his  action  when  presiding  over  the  trial  of 
David  8.  Terry,  a  former  chief-justice  of  the  State,  for  the  murder  of 
senator  David  C.  Iboderiek  in  a  duel.  In  that  case,  through  the  collu- 
sion of  the  district-attorney,  a  jury  was  impanelled  between  nii.3  and 
ten  o'clock  in  the  morning,  at  which  hour  the  witnesses  for  the  State  had 
been  8ubp(enaed   to  appear.     The  witnesses  were  in  a  sail-boat  and 


1"'  Ciilifornia  Senate  Journal,  8th 
Sess.,  1837,  j)|).  297-303,  407-410,  424, 
425,  457,  463.  Tlio  aeeount  of  this 
case  is  taken  from  the  notes  of  Mel- 


ville E.  Ingalls,  Jr.,  Esq.,  of  the  New 
Yoi'k  bar,  wlio  courteously  loaned 
them  to  the  author. 


Air.] 


(■Al.llollMA. 


•13 


were  dPtiiiniMl  liy  a  foijr,  uh  wiih  ficncrilly  luinwii  lit  the  pliiofi  of  tri:)',. 
'I'lio  I'iirto  WUK  siiliinill.'d  to  till'  jury  in  llic  iiliscnce  of  the  witnesses  lor 
iLe  State,  and  a  verdict  of  not  suilty  allowed  liefore  ten  o'l'lock  tliiU 
niorninji.  The  witnesses  arrived  one  or  iwo  hoiirs  al'ti'rwards.  One  of 
tile  jiiiynien  iiad  pn^vioiisly  sut  on  imollier  jury  on  llie  trial  of  (ie(uye 
I'en  .loliiisl<<n  for  klllini;  Senator  l''erij;uson  in  a  duel,  and  hud  openly  de- 
clared upon  the  streets  that  he  would  never  convict  a  nuiii  for  killinj? 
nuotlier  in  a  duel,  i)rovided  the  <liiel  was  a  fair  one.  Another  juryman, 
as  was  well  known  to  the  coiinly  ollleers,  was  under  Indictnienl  for  a 
imirder  of  which  lie  was  suliseiiuently  convicted.  The  aitides  nli-o 
chiivired  fre(|uent  drunkenness  upon  the  bench ;  and  willful  neglect  to 
pcrfo'iii  the  duties  of  his  odice  with  riMsonalile  diligence.  The  fifleeiilli 
article  charged  a  number  of  instances  of  seditious  and  trea.-ionable  lan- 
guage used  otf  the  bench,  in  most  cases  in  pidilic  bar-rooms. 

It  appeared  upon  the  triid  that  .ludije  Hardy  had  ])ieviously  been 
tried  for  murder  but  acipiitted.  An  attempt  was  made  liy  one  wit- 
ness for  the  respondent  to  kill  a  witness  for  the  State  diiriog  the  trial. 
One  witness  appeared  in  court  with  a  loaded  pistol  and  a  dirk-knife, 
which  latter  weaprjii  he  was  asked  but  refused  to  exhibit.  The  evidence 
was  contlictiug  as  to  all  of  the  charges  except  those  relating  to  the  trial 
of  'IVrry,  and  the  seditions  language.  One  of  the  witnesses  for  the 
State  testified  as  regards  the  charge  of  drunkenness  that  he  had  fre- 
quently seen  the  judge  intoxicated,  but  not  in  court,  nor  during  the 
terms  of  his  courts.  Jlost  of  the  delays  charged  against  him  were 
alleged  to  have  been  caused  liy  his  desire  to  keep  on  good  terms  with 
both  sides  until  after  election.  The  respondent  was  aeiinitted  on  all 
the  articles  except  those  charging  trea.souable  language.  He  had  in  his 
favor  a  large  majority  and  in  some  cases  a  unanimity  upon  all  the  others 
except  those  relating  to  the  trial  of  .Judge  Terry,  and  on  that  charge 
he  was  ac(iuitted ;  the  vote  standing  eighteen  for  him  and  eighteen 
against  him.  He  was  convicted  by  a  two-thirds  vote  of  twenty-four 
to  twelve  on  the  fifteenth  article  of  iiiipeaehment,  which  charged  hiiii 
with  profane  language  out  of  court,  and  the  exi)iessiou  of  sympathy 
with  secession,  Jefferson  Davis  and  the  Confederacy.  The  sentence 
was  simply  removal  from  ofllce.  A  proposition  to  limit  the  punishment 
to  suspension  for  six  mof.lhs  vas  voted  down."" 

i">  Onielal  Report  of  the  Proceed-  Califoniiii,  sitting  as  a  HIkIi  Court  of 

ings,   Tostimoii.v  and   Arguments,  In  Impeacluuent.     Snimier  .V  Cutter  Ofll- 

the  Trial  of  .James  H.  Ilarily,  Distriet  eiiil  Keportors.    Saeramento:  Benj.  P. 

Judge  of  the  SixteiMitli  .luilieinl  Dis-  Anthony,    State    Printer,     1862.     i)p. 

trict,  before  the  Senate  of  the  State  of  712. 


